Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. In addition, you may be aware that the heating is down, but I can assure you that the air quality is being monitored. If it goes above 1,000 parts per million, we will have to adjourn, but at the moment it is at 700, so we should be fine because there are not many of us in the Room. If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes or earlier in agreement with the people in the Room.
National Insurance Contributions Bill
Monday 10th January 2022
(2 years, 3 months ago)
Grand CommitteeRead Full debate National Insurance Contributions Act 2022 View all National Insurance Contributions Act 2022 Debates Read Hansard Text Amendment Paper: HL Bill 48-I Marshalled list for Grand Committee - (6 Jan 2022)
Baroness Kramer
Member’s explanatory statement
This amendment would ensure employers have declared the beneficial ownership of goods or assets in the freeport before being eligible for zero-rate contributions under this Bill.
Baroness Kramer (LD)
My Lords, I shall try not to add too much to the hot air in the Room so that we can crack through all of this.
Free ports have historically been a magnet for illicit activity, including, and these days almost especially, money laundering. Some of the UN reports give people a sense of how large the scope of money laundering is; the reports reckon that something like $800 billion up to $2 trillion a year—2% to 5% of the world’s GDP—is put through the laundry machine. In May 2020, RUSI’s Centre for Financial Crime and Security Studies said in written evidence to the International Trade Committee of the other place:
“there is evidence of criminal activity taking place in multiple freeports around the world. It often involves trade in counterfeit goods, drug trafficking, smuggling of untaxed goods or trade-based money laundering”.
By definition, free ports do not require declarations that are associated with customs, excise or tax, which are the principal ways in which transparency as to the nature of imported items, their origins, destinations and ownership, is achieved. When extensive processing of those imports is also available in the free port site, especially when, as in this case, the processing is granted all kinds of fiscal favours, including the waiver of national insurance contributions, the lure for criminals and money launderers is very much magnified. Obviously, the more processed the illicit product, the harder it is to trace or track and the harder it is for enforcement. Exploring safeguards against illicit behaviour is the motive behind Amendment 1, which I recognise is very much a probing amendment.
I thank the Minister and his office for taking this issue seriously in our meeting last Thursday. It was a very useful meeting, and we appreciate it. The follow-up information provided has alleviated some of my concerns, because, as the email from the Treasury explained, some relevant measures were included in the freeports bidding prospectus, which says:
“the Freeport Governance Body will be required to maintain a record of all the businesses operating or applying to operate within the tax site.”
Up to date information will be held on the “beneficial owner” of each business and the body will be required to make
“reasonable efforts to verify the beneficial owner”.
This information will be made accessible to HMRC, the NCA and Border Force. However, as it stands it will not be available for public scrutiny; the Minister will correct me if I have got this wrong. HMRC will spend little effort looking at what is happening in free ports; by definition, there are no customs, duties or tax requirements. Therefore, the NCA becomes, as it were, the strongman for enforcement in this case. This led me to look at the National Crime Agency inspection report from July 2021. I will quote from the summary—it was a fairly scathing report:
“There is insufficient capacity in the investigations command to meet the demand being developed by the intelligence command and the reactive demand (such as seizures at the border).”
In other words, we have a problem. The National Crime Agency, even without the addition of free ports, is significantly underresourced and needs to upskill, although this is less to do with the capacity of the people; there is also a lack of technical resource. We are turning to that body at the same time as introducing new avenues for money laundering and other illicit behaviours.
This House and this Government have always taken the view that it is the public nature of any register of beneficial ownership that brings the necessary scrutiny and deterrence to make that register effective. The UK already has a public register of the beneficial ownership of UK companies, and the Government have promised a public register of the beneficial owners of UK property. In addition, the Government insist that they have been working very hard to achieve public registers in the overseas territories and Crown dependencies, so it seems really odd to create a new situation here where one of the primary tools will be a register of beneficial ownership that is not being made public. At the very least, this undermines those discussions with the overseas territories and the Crown dependencies.
I would very much like the Government to have a rethink and see whether they can make this information publicly available, at the very least. It would also be really helpful to know whether some additional resource will be put into the National Crime Agency, because without that we will be on a very uncomfortable wicket in this world where money laundering is frankly a growth industry, not a declining one.
Lord Tunnicliffe (Lab)
I start by reiterating the Labour Party’s position on the Bill, as originally stated at Second Reading. We have never understood the Government’s fanaticism over free ports and are sceptical that they will deliver the scale of economic benefit promised in recent years. Nevertheless, we do not intend to oppose the various measures, some on free ports and some on other issues, contained in the legislation. The Government will get their Bill through and it will be up to Ministers to prove that their way is the right way. If that proves not to be the case, they must own their failures of judgment.
As a general point, there are several important questions that the Government were unable to answer in the other place or at Second Reading. Today is an opportunity to explore some of those concerns in more detail. It is also a chance for me to record my thanks, along with those of the noble Baroness, Lady Kramer, to the Minister and his officials for their engagement between Second Reading and today. Not all our questions were answered, but I hope they will be addressed as the Minister responds to the nine amendments before us.
Amendment 1, tabled by the noble Baroness, Lady Kramer, has enabled a short debate on beneficial ownership. As she noted in her introduction, we have been waiting for quite some time for the Government to deliver on their numerous promises in this area. I am sure the Minister himself has delivered assurances on at least a few occasions. The case for stronger action has been made time and again. Light is cast on shady practices, yet despite stern warnings from the Chancellor, meaningful action never seems to materialise. I hope colleagues will forgive the slightly dry analogy, but as we are in January it is almost as if the Treasury and BEIS are treating this like a new year’s resolution. It sounds positive, and we are promised that the Government will follow through, but within weeks or months the ambition quietly falls away. Questions about beneficial ownership are not best dealt with in this Bill, but I appreciate the noble Baroness’s efforts to raise them. I doubt the Minister will be able to offer all the assurances that we seek, but I hope he can go some way to proving me wrong.
Viscount Younger of Leckie (Con)
My Lords, I start by thanking the noble Baroness, Lady Kramer, and the noble Lord, Lord Tunnicliffe, for raising these important points. I also found it useful to have a discussion prior to Committee on the points that both noble Lords raised, which are being taken forward today. Ensuring that the free-port tax reliefs are effectively targeted is a government priority, and this will be the general theme of my remarks.
Before I go into the detail of the specific amendment, I will provide a brief overview of what the Government are looking to achieve through free ports, and I hope this will be helpful to the noble Lord, Lord Tunnicliffe, in particular. It is, first, to establish national hubs for global trade and investment, intensifying the economic impact of our ports and generating increased economic activity across the UK. Secondly, it is to deliver jobs, sustainable economic growth and regeneration in the areas that need it most. Thirdly, it is to create centres of innovation that bring together innovators to develop and trial new ideas and technologies.
To these ends, each free port will contain specific tax sites where businesses can claim reliefs on new investment and jobs, including the national insurance contributions relief discussed here today and as part of this Bill. Each free port will also contain specific customs sites where importers, exporters and manufacturers can benefit from duty reliefs and simplified customs procedures. Also, each free port will receive a capital grant for infrastructure improvements, alongside planning flexibilities and trade, investment and innovation support.
Amendment 1 seeks to support the government’s commitment that only legitimate businesses operate in free ports. I can assure the House that the Government have taken steps to ensure that only those whom this policy is intended to benefit will benefit. Specific to this policy, the Government have included conditions requiring free-port employers to have a physical business premises in the free-port tax site, so that only employers that are investing in free ports can benefit from this relief. Next, employees are required to spend 60% of their working time in the free-port tax site. Both these conditions ensure that the relief is effectively targeted.
In relation to free ports more broadly and the specifics of the amendment, the Government have three stages before businesses can claim reliefs in tax sites. The noble Baroness, Lady Kramer, mentioned the bidding process. I am pleased that we have got to this point in the debate. The bidding process, run by the Department for Levelling Up, Housing and Communities, considered a wide range of criteria, including what steps the bidders would take to ensure that their free port would be secure against illicit activity. As I think the noble Baroness picked up, eight out of the 14 bids were taken forward, which means that six were not.
Secondly, each free port has to agree its proposed tax sites with HMT and HMRC, with consideration given to HMRC’s ability to enforce the conditions of the tax reliefs within each site. So far, three of the free ports have had a total of eight tax sites designated. Thirdly, each business within a tax site will need to submit a return to HMRC to claim this relief and demonstrate that it has met the relevant conditions. Compliance checks will be carried out to ensure that only those who are eligible for the relief benefit from it.
To support all this, as part of successful bids the Government have required free-port governance bodies to undertake rigorous efforts to verify the beneficial owner of businesses operating within the free-port tax site. This is a proportionate approach that means that the local area can take effective measures to ensure the security and propriety of operations within the free port. In practice, many free-port governance bodies are taking further steps to ensure that firms moving into tax sites will support delivery of the free ports’ overall objectives. Similarly, for the customs sites, there are three stages: first, the overall free-port bid process that I referred to earlier; secondly, HMRC approval of each customs site; and, thirdly, HMRC approval of each business operating within each customs site.
Baroness Kramer (LD)
My Lords, I will indeed withdraw the amendment, but I put the Minister on notice that when every opportunity occurs I will keep pressing, as I suspect will others in this Room, for public, not just private, registers of beneficial interest. I am convinced that until we do that we will not crack this problem. I beg leave to withdraw the amendment.
Baroness Kramer
Member’s explanatory statement
This amendment would limit the regulations that could be made under section 3(3) to those that would ensure compliance with the UK’s international obligations with respect to subsidy control.
Baroness Kramer (LD)
My Lords, this amendment reflects the concerns of the Delegated Powers and Regulatory Reform Committee. I suspect that everyone, including the Minister, is familiar with its comments, and I shall be interested to hear the Minister’s response above and beyond the letter that was sent to us. The position of the DPRRC, which has a great deal of logic, is that the powers conferred by Clause 3(3) are inappropriate. They would enable the Treasury to rewrite the conditions that employers must meet to receive NICs relief.
The Treasury in its memorandum asserted that it had two purposes behind those powers. The first is a potential change in economic circumstances, although that must apply to every Bill that comes through this place. It is impossible to conceive of urgency when it comes to the nature of free-port rules. However, should that urgency arise, Parliament is frankly very good at dealing with urgent legislation, as we have proved over the last couple of years.
The second purpose the Treasury discussed is the need to make the relief compatible with a subsidy control regime that is not yet in place. The committee recognised that concern, as do I, so the amendment allows powers to make changes to achieve that compatibility.
But the powers sought by the Government are actually much wider than either of the purposes mentioned by the Treasury. Indeed, they can be exercised for any purpose. In effect, regulation can almost without limit change the primary legislation that designates the character of free ports. This amendment therefore fundamentally seeks to limit the untrammelled nature of the powers. I say to the Government more broadly that they need to mend their ways, because we constantly see legislation of this kind—Bill after Bill. I am glad that the noble Lord, Lord Tunnicliffe, is also speaking on this amendment because it is clear that the Labour Party would benefit from untrammelled powers should there ever be a change in power. Perhaps it is a salutary thought for the Government that, if they constantly pursue the shift of power to the Government away from Parliament, it will not revert when the day eventually happens and Governments change.
Lord Tunnicliffe (Lab)
My Lords, I was pleased to add my name to Amendment 2 and several other amendments to be discussed later today, which aim to implement the recommendations of the Delegated Powers and Regulatory Reform Committee. It goes without saying that the Government and the DPRRC will not always see eye to eye on these matters. However, we have long trusted the committee to take a balanced approach to the scope of ministerial powers, so that the Government can meet their objectives while respecting the vital role of Parliament. I will pick up the noble Baroness’s challenge about the hazy days of summer when we are in power. I am old enough to remember when we were in power, and we almost always implemented the recommendations of the DPRRC or whatever was its equivalent at that time, so I am sure we will receive her approval in how we behave.
The power in Clause 3(3) does not appear to strike the appropriate balance. As the committee notes in its 11th report of the Session, the current draft is significantly broader than required to fulfil the indicative purposes listed in the Treasury’s memorandum. The noble Baroness, Lady Kramer, has adopted the terminology suggested by the DPRRC and we support that. Maybe there is some middle way, which will give the Treasury some but not all of the flexibility that it seeks.
I am grateful to the Minister for sending me a copy of his response to the committee, enabling us to have a more informed debate today than would have otherwise been the case. Sadly, like the noble Baroness, Lady Kramer, I was disappointed by his response, particularly in relation to the power in Clause 3(3). I continue to side with the committee in relation to the non-binding status of the Treasury’s memorandum. While the historic example of the 2014 Act was somewhat interesting, I am not sure that makes the argument persuasive. I hope that he can provide some further detail today, but what we will really need in the run-up to Report is a change in attitude from the Treasury.
It would be better if the department were to think again of its own accord but, if that is not possible, I would not be surprised to see a similar amendment tabled at a later stage of the Bill.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Baroness, Lady Kramer, for raising this point, which reflects a recommendation by the Delegated Powers and Regulatory Reform Committee.
As background, Clause 3 ensures that the Government retain the flexibility to react to the economic realities of free ports and to protect the taxpayer, and it therefore contains a number of regulation-making powers, in subsections (3) and (4). Free ports are novel in the UK. The Government have undertaken an ambitious plan to invest in underdeveloped areas and level up the UK. So that the Government can continue to meet their international obligations and retain the power to exclude employers that seek to abuse this policy, they have taken a power to add, remove, or alter the conditions set out in Clause 2, which is contained in subsections (3) and (4) of Clause 3. A similar approach was taken with other free-port measures legislated for in the Finance Act 2021. My point is that there is a precedent here.
I turn to the substance of Amendment 2, tabled by the noble Baroness, Lady Kramer, and supported by the noble Lord, Lord Tunnicliffe. It seeks to limit the regulations that could be made under Clause 3(3) to those that would ensure compliance with the UK’s international obligations with respect to subsidy control. This is in response to the report of the DPRRC, which recommended that this power, which may amend Part 1 of the Bill and which is subject to the draft affirmative procedure, should be restricted to specified purposes only.
I would like to explain to noble Lords why the Government consider this amendment unnecessary, and will go into the reasons, as the Committee would expect me to. Examples of when this power could be used are provided in the department’s delegated powers memorandum of ensuring compliance with the UK’s international subsidy control obligations. The Government believe that this amendment would be overly restrictive and could result in primary legislation being needed in the near future. The subsidy control landscape in this case is complicated, uncertain and difficult to predict, and the power needs to be capable of dealing with a wide range of possibilities. The Government believe that it would be difficult to narrow it while at the same time allowing it to be flexible enough to deal with a wide range of possibilities within the subsidy control landscape.
I shall go further. It may help the Committee if I also explain what in the Government’s view is a clear precedent for this power, in Section 5(1)(b) of the National Insurance Contributions Act 2014. This measure provides a power exercisable by the Treasury to make regulations to add, reduce or modify the cases in which a person cannot qualify for an employment allowance or in which liabilities to pay secondary class 1 NICs are excluded liabilities. It enables the Treasury to make changes to Sections 2 and 3 and Schedule 1 of that Act. The Delegated Powers and Regulatory Reform Committee’s 18th report of Session 2013-14 considered the delegated powers in the NICs Act 2014 but, interestingly, did not comment on the power in Section 5(1)(b) of the Act.
The power in Section 5(1)(b) has so far been used three times, including to exclude companies with employer NICs over £100,000 to focus the relief on small businesses. This policy change was not foreseen when the power was introduced and, if there had been a similar restriction in the legislation on the use of the power, such a change would have subsequently required primary legislation. This could have risked a delay to implementing the policy as, unlike Finance Bills, NICs Bills are not guaranteed to be annual.
In view of the above, and that similar powers are also included in the Finance Act 2021, the Government believe that the draft affirmative procedure remains appropriate without further restrictions on the power. With this rather lengthy explanation, I hope that the noble Baroness will withdraw her amendment.
Baroness Kramer (LD)
My Lords, once again, I shall at this stage withdraw, although I am sure that the Minister heard the comments of the noble Lord, Lord Tunnicliffe, on this issue a few moments ago. It is salutary constantly to hear the word “precedent”. I am sure that when the terms were drafted for the national insurance Bill dealing with employment allowance, there were constant reassurances that the power would be used very narrowly and only to deal with very particular circumstances. That is the problem—it then becomes a precedent for the door to be opened more widely and yet more widely. The clause here is a particularly wide one. We have underlying concerns that, once again, we are getting a design of legislation that is not appropriate—but, at this stage, I beg leave to withdraw.
Baroness Kramer
“Review of the impact of section 1
(1) Within six months of the day on which this Act is passed, the Secretary of State must carry out a review of the impact of section 1 of this Act.(2) The review in subsection (1) must cover but is not limited to—(a) an estimation of the loss in National Insurance revenue as a result of section 1;(b) the number of jobs created as a result of section 1; and(c) the impact of section 1 on small and medium-sized enterprises.(3) The Secretary of State must lay a copy of the review before Parliament.”Member’s explanatory statement
This amendment would require the Secretary of State to review the impact of section 1 of this Bill.
Baroness Kramer (LD)
My Lords, I must apologise—three in a row, here—but this amendment deals with rather a different issue from those which we have so far discussed. Your Lordships will be well aware from Second Reading and other comments that I have made that one of my main concerns about free ports is that they displace growth in businesses, jobs and opportunities from other areas of disadvantage rather than create additional growth. There is a very interesting study by the Centre for Cities, which showed that in the first five years of enterprise zones in the UK—2012 to 2017—only a quarter of the predicted jobs were created but, of those, a third came as the result of displacement, and the jobs were overwhelmingly low skilled. That ran counter to all the expectations, discussion, promises and arguments. Other experience also suggests that SMEs do not benefit: if anything, it is larger companies that benefit, so it is not a pro-SME strategy.
We have plenty of global experience to demonstrate that free ports do not aid economic growth. Very few people would look at existing free ports and argue that they have contributed in any significant way. There is now a different argument about the United States, which has intermediate taxes on processing, an entirely different situation which does not exist in the UK. That is usually the only example anyone can come up with that has any weight behind it, but its circumstances are so utterly different that it does not apply in this case. We have really no evidence that free ports aid economic growth, and neither do we have evidence that enterprise zones create economic growth. In effect, this policy combines the two in one location. That is pretty unlikely to overcome the weaknesses of either. Because of that, I am very concerned that we have a prompt review of the impact of the Bill, because we will have to see whether a course correction is required. That is what the amendment would do in a number of different but, to anyone reading the amendment, obvious ways.
Lord Tunnicliffe (Lab)
My Lords, this is a very straightforward amendment, and one which mirrors the Labour Party’s text tabled at this stage in the House of Commons. I shall not detain the Committee with a lengthy contribution, as the case for a review of the NICs relief enabled by Clause 1 has already been well made. We may quibble over the timescale and precise details of any review, but it appears sensible that the Treasury outline whether the realities of this policy live up to the expectations. As stated earlier this afternoon, Ministers must own their decisions. An amendment along these lines would significantly increase the accountability attached to this tax break.
Although I am sure he will argue that such a review does not need statutory underpinning, I hope the Minister will respond positively to the proposal. A concrete commitment to a review along these lines would be of great comfort. Others, including the National Audit Office, will no doubt analyse the performance of free ports in the months and years to come but, in the interim, it would be a shame if the Treasury were not open about the successes or otherwise of its measures.
Viscount Younger of Leckie (Con)
My Lords, I in turn thank the noble Baroness again and the noble Lord, Lord Tunnicliffe, for raising these concerns. In particular, I will address the point she made about displacement slightly later in my remarks.
Amendment 3 would require the Government to conduct a review, six months from the date this Act receives Royal Assent, into the effectiveness of the policy. The Government acknowledge the importance of monitoring reliefs of this nature and evaluating ambitious programmes such as these free ports. It is for that reason that the Government have already committed to reviewing the use and effectiveness of this relief before deciding whether to extend it further. This review will look at the data available through HMRC’s systems.
More broadly, the Department for Levelling Up, Housing & Communities—the department responsible for delivery of free ports, as I mentioned during an earlier debate—is leading the monitoring. It will work closely and collaboratively across government to ensure a robust and rigorous evaluation. Given that the free ports policy is focused on generating long-term benefits to local areas, six months is unlikely to be an appropriate timescale for any review, as free ports will not have fully reached their operating potential within that six months. For example, ports will still be looking to attract additional investment and continuing to develop their sites. In addition, this policy relates to new employees. As I imagine the noble Baroness will understand, the hiring process can take a number of months, which would take us well beyond the six months she suggests.
The department for levelling up has committed to publishing its monitoring and evaluation strategy in spring 2022. This strategy will be in line with key principles and best practices from the Magenta Book, which provides guidance on evaluation within government, and will ensure a robust and rigorous evaluation of the free ports programme.
Furthermore, the Government have taken on board suggestions and feedback from stakeholders and the public as part of the consultation process to ensure that the UK has an ambitious and attractive offer for businesses. Our new free ports offer is far more ambitious than our previous one, including simplified customs processes, targeted tax measures to incentivise private business investment, carefully considered planning reforms and targeted funding for infrastructure. This new, ambitious free ports policy offer is already proving attractive to domestic and international investors looking to start or grow their UK operations.
Throughout the development and delivery of the free ports policy, the Government have taken steps to ensure that the tax, spending and policy levers deployed in free ports are used effectively. That takes us back to the first debate we had this afternoon. For example, to minimise displacement of economic activity, we required bidders to explain how their choice of tax locations would attract new economic activity to the area which would not have been possible without free ports. Subsequently, tax sites were not designated until the Government were confident that this had been successfully demonstrated. This approach has been recognised by the OBR in its Economic and Fiscal Outlook, which says that
“the Treasury has taken steps to try to reduce displacement through the bidding process, requiring bidders to demonstrate how they would generate additionality and minimise displacement from other locations.”
We are already seeing positive evidence of new investment at free ports. For example, DP World announced an investment of £300 million to support the Thames free port.
It is prudent to work within these existing frameworks so that we can get a holistic view of the success of free ports. We believe that conducting the review less than six months from when the relief comes into effect will produce an incomplete dataset and will not give a fair reflection of the policy. With this explanation and these reassurances, I hope that the noble Baroness will withdraw her amendment.
Baroness Kramer (LD)
Once again, I will of course withdraw the amendment. I note with some irony that the Minister suggests that a review in six months is way too soon, yet here we are with a piece of legislation and we do not even know what the monitoring criteria will be. We are already putting horses and carts in the wrong order.
I am very concerned that there really should be a rigorous review of this process because we will see some significant losses in forgone national insurance contributions, which will have some serious consequences, particularly at a time of such fiscal constraint. We ought to have a running and prompt evidence base to be able to judge whether those forgone taxes are justified by the change in behaviour that is taking place. I hope we will see something vigorous in terms of a review. I am not very convinced. I am slightly distressed that the review is apparently being thought of after the legislation and not before it, but at this point I beg leave to withdraw the amendment.
Lord Tunnicliffe
Member’s explanatory statement
This amendment alters the conditions attached to zero-rate relief for armed forces veterans, ensuring that such relief is available for a period of three years after the veteran begins civilian employment, rather than one.
Lord Tunnicliffe (Lab)
My Lords, in moving Amendment 4, I express my gratitude to the noble Baroness, Lady Kramer, for her support. The amendment provides me with a rare opportunity to combine two of my great loves in life: helping veterans while studying the minutiae of fiscal policy. On the face of it, it is a simple amendment and reflects a question asked of the Government at Second Reading: why, given that they have chosen to offer a three-year tax break to businesses operating within free ports, are they able to fund only a single-year incentive to firms hiring Armed Forces veterans?
Let me be clear from the start that, like organisations such as the Federation of Small Businesses, the Labour Party welcomes the new form of NICs relief. In my view, even if it were to help only a small number of veterans into civilian work, it will have been a success. However, as I have given more thought to the question in recent weeks, I am increasingly sceptical that this form of time-limited NICs relief is the right one. It feels more like a means for the Government to say that they are delivering on their duty to former service personnel, as enshrined in the Armed Forces covenant, rather than a scheme that matches the realities of veterans’ lives.
Many service personnel leave the Armed Forces with a variety of fantastic experience and skills. This may not have been gained via traditional learning routes, but employers know that veterans bring with them practical know-how and a first-class attitude. Some veterans readjust to civilian life immediately. They will be lucky enough to find stable accommodation, apply for jobs and find themselves with a new career. However, for others, this period of adjustment is particularly difficult. Finding a permanent place to live may prove tricky, or they may struggle integrating into the labour market in their chosen area. For every veteran who settles into a job within 12 months, there is likely to be another who, for a period of some years, finds themselves moving between living accommodation or jobs.
Lord Tunnicliffe (Lab)
This new NICs relief will be hugely beneficial for veterans in the first group, but I fear that it does nothing for the second. Indeed, I worry that, if you are an individual who cannot get up to speed with civilian life within 12 months, there is the chance that you will be left behind as firms seek the savings of hiring somebody from the next batch of new veterans.
I have always been concerned about the covenant. I feel that I have been representing the Labour Party on defence ever since it was first mooted. I have always been deeply suspicious that it is all about words and very little about resources. However, the forces’ charities, particularly the Royal British Legion, have argued that it is a force for good. Here, we have something real; we have real resources being devoted to the covenant to make it work. The Government clearly believe that it will make a difference. Clearly they have accepted the principle. All we are debating is the price.
It seems to me that three years would be fairer. It is difficult to see why a very generous three years will be there for free ports, whereas people who have laid their lives on the line for their country will have to manage with one year. It would be better for society as a whole. Unfortunately, too many veterans do not fit into society very well. They become if not a drag on society then nothing like the contribution that they could make. Time is required to make a difference. I know and meet some of these individuals. I suppose I tend to meet the ones that have successfully merged into civilian life. They talk about how difficult it is at first and how surprisingly long it takes them to settle down and into jobs that are productive for society and good for themselves as individuals. The extension to three years will be especially useful for what I loosely call “difficult cases”.
I am very committed to this and will undoubtedly come back on Report if no progress is made in any discussions that we might have in the meantime. All that is clear to me at this stage is that the scheme, although a step in the right direction for veteran support, is also a missed opportunity. Let us seize the opportunity and do better. I beg to move.
Baroness Kramer (LD)
My Lords, my comments will be brief, but I hope the Minister will not read that as meaning that I lack an interest in this. I am passionately supportive of this amendment and thank the noble Lord, Lord Tunnicliffe, for bringing it forward.
We all know that military veterans have a wide range of skills to offer civilian employers, especially SMEs, but we also know that quite a few—although far from all—veterans need support to make the adjustment to the civilian workforce, whether that be in updating skills or dealing with the adjustment back to civilian life or with service-related trauma. I have always looked at the zero rating that the Government propose not as a saving for the company as an incentive to employ the veteran but as a means to enable that company to provide the necessary support—the upskilling and the more social forms of support—to enable the veteran much more quickly to belong and be part of the company that he or she has joined, and to be successful in that role. For that reason, three years seems eminently sensible. The idea that it is a virtually instant process for someone to make that transition from military to civilian life is, I think, artificial.
If I understood it correctly from some of our off-piste discussions, the cost of providing support is in the range of £20 million a year. That is trivial in terms of any departmental budget. To, in effect, triple that, which is what this proposal is doing by calling for three years, does not seem an unreasonable ask—nor does the amount of money involved. It will disappear somewhere to the right of the decimal point in the Treasury accounts. I hope the Minister will take this opportunity to rethink. It would look well for the Government to take a more generous approach, and it would also underpin the success of what is, I think, a good strategy.
Viscount Younger of Leckie (Con)
My Lords, Amendment 4, tabled by the noble Lord, Lord Tunnicliffe, and supported by the noble Baroness, Lady Kramer, seeks to extend the veterans relief from one to three years, as has been pointed out.
Stable and fulfilling employment is a vital part of a successful transition from the Armed Forces to civilian life. The Government provide an effective career transition package to service personnel leaving the Armed Forces, which, the latest figures indicate, supports 84% into employment. The training, experience and resources available to service personnel ensure that veterans have a valuable skill set to offer employers, as the noble Lord, Lord Tunnicliffe, described so eloquently. However, 7% of veterans using this service remain unemployed up to a year after leaving the Armed Forces.
The noble Lord and the noble Baroness both put it well. To an extent, their thoughts chime with mine. This relief has been introduced to support veterans as they transition into civilian life and to encourage employers to utilise the vast skill sets of veterans. Between 10,000 and 15,000 people leave the Regular Armed Forces each year; their employers will be able to benefit, in the 2021-22 tax year, from up to £5,500 worth of relief.
This measure fulfils the Government’s 2019 manifesto commitment and builds on the UK-wide Strategy for our Veterans, launched in November 2018, which includes specific commitments to support veterans to “enter appropriate employment”. The Government have also established an Office for Veterans’ Affairs and have launched initiatives including the Civil Service’s guaranteed interview scheme for veterans. In March 2021, the Government also announced the Op COURAGE service, creating a single point for veterans to access mental health services, and NHS England published Healthcare for the Armed Forces Community: A Forward View, which included commitments to help the transition to civilian life and to improve veterans’ and their families’ mental health.
Although the free port relief is available for three years, as is well known, employers of veterans have a higher threshold before they pay any NICs. These reliefs have been designed in this way because they serve fundamentally different purposes. The free port relief is part of the Government’s levelling-up agenda and is aimed at incentivising long-term investment and employment growth. By contrast, the veterans relief is aimed at reducing the barriers to employment that some veterans face when they leave the forces to transition into civilian life. Therefore, it provides a relief for a shorter duration but at a higher threshold, providing employers up to £5,500 in savings per veteran they employ, as was mentioned earlier.
The Government consulted extensively on the relief, including a policy consultation which ran from July to October 2020 and a technical consultation which ran from January to March 2021. A significant number of respondents agreed that this relief was a positive step towards supporting the recruitment of veterans and could break down the barriers and negative perceptions surrounding veterans. The cost savings were also welcomed by stakeholders, with the Federation of Small Businesses and X-Forces Enterprise jointly welcoming the announcement.
If such an amendment were passed by this House, it would reduce receipts into the National Insurance Fund and therefore create a cost to the Exchequer. Financial matters are normally the responsibility of the other place, as both the noble Lord and the noble Baroness will know. With those reassurances and broader explanation of why we see one year as appropriate as opposed to three years, I hope that he will withdraw his amendment.
Lord Tunnicliffe (Lab)
My Lords, I acknowledge that the Government have made some good progress in improving the services to veterans, but the noble Baroness, Lady Kramer, touched on an important point about the social form of support. We are not talking about a single firm; we are talking about a three-year period to adjust. It is all very well to say that many veterans leave the forces with attractive skills, but a rather important number of veterans leave with the skill of how to kill people, and there is not a great deal of call for that in civilian life. A very structured society under military laws has, in a lot of cases—not the majority, by any means—been good for people who come in with a difficult lifestyle and a certain waywardness; it works for them. But if they come into the civilian world and that falls away, without a specific set of skills they find it difficult.
We are talking about not just settling down but building up a CV in these three years. As I said, I conversed with some individuals, and a point made to me by one person—it was some time ago—was that his CV for employers was rather weak. He needed to prove not only that he was a good chap in the military but that he had been a good citizen in perhaps not particularly exciting jobs, which then allowed his career to progress. I would hate the Government to get into a position where they had to argue for this programme being, in a sense, underfunded—that they thought it generally speaking a good idea, but would look too mean and, in saving a little, would allow victory to escape. As ever, I beg leave to withdraw the amendment.
Lord Davies of Brixton
“Reimbursement of the National Insurance Fund
In section 2(2) of the Social Security Act 1993 (payments into National Insurance Fund out of money provided by Parliament)—(a) after “not exceeding in aggregate” insert “—(a) ”, and(b) at the end insert “, and(b) the reduction in secondary Class 1 contributions in that tax year arising from the provisions of section 1 and section 6 of the National Insurance Contributions Act 2022.””Member’s explanatory statement
The new Clause is to probe whether it might be desirable for the Secretary of State to pay to the National Insurance Fund from the Consolidated Fund the reduction in contribution income that will be received by the National Insurance Fund due to the zero-rate relief in secondary Class 1 contributions introduced by the Bill for employers of Freeport employees and the employers of forces veterans.
Lord Davies of Brixton (Lab)
My Lords, the main function of this amendment is to offer brief respite to the noble Baroness, Lady Kramer, and my noble friend. However, the amendment is on a serious matter and I want to take this opportunity to raise it and see if I can elicit a response from the Government. It could be argued that it is on more of a Second Reading point, but it occurred to me only subsequent to Second Reading, and the amendment fits here.
I also accept that it is a probing amendment and far from perfect. In practice, I would have to rewrite extensive legislation to achieve what I want, which would probably fall foul of the rules on financial privilege anyway. However, I am still raising a point that is important, although I do not intend to detain the Committee overlong.
Baroness Kramer (LD)
My Lords, I will be quite quick. The noble Lord, Lord Davies, does himself a disservice; this is a very important issue. I certainly missed it, and I think only someone with his expertise and acuity would have picked up this very fundamental point of principle. The National Insurance Fund and its Northern Ireland equivalent are used to pay social security benefits, as the noble Lord said, including the state pension. Messing with the state pension certainly reverberates with the general public. Without the change proposed by the noble Lord, Lord Davies, these funds are in effect being raided by the Government to pay for economic growth subsidies. Is that now their purpose?
The Government may argue that their new national insurance contribution social care levy, to be used for the NHS and perhaps eventually for social care—many of us doubt we will ever get there—sets the precedent for raiding the fund. We come back to the word “precedent” yet again. I doubt that this has been declared openly to the British people. It matters not just because of the promises inherent in the fund and its role but because NICs fall on workers earning well below the tax threshold. To raid their contributions—which they will have thought are paid towards benefits and pensions—to provide a subsidy for businesses is certainly a fundamental change of purpose.
I hope we can have some explanation from the Minister, because this seems to me a point of principle. With precedent established, I very much question where this whole track will take us. I again thank the noble Lord, Lord Davies, for raising a very fundamental point of principle which needs to be answered and dealt with openly.
Lord Tunnicliffe (Lab)
My Lords, I will not make much of a speech because it would dilute the excellence of the points made in the debate so far. It seems that we are on an edge here; if we do not do something about this, we will throw away these terms. They will become meaningless unless we preserve them.
There is a big debate about what I loosely call hypothecation, and so on; sometimes we wander into it and sometimes we do not. However, if you are going to wander into this area, you should keep it clean. The use of this fund in this way pollutes the concept and is a retrograde step. I hope that the Government will think twice about it. We do not object to what is being done in the Bill but, somehow or other, a device needs to be found to keep these terms clean. I support the amendment.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Lord, Lord Davies of Brixton, for raising these interesting points. I hope that I can provide for him, as I wish to do, a full and rounded answer.
This amendment seeks to ensure that the National Insurance Fund, or NIF, remains in good health by allowing a transfer of funds from the consolidated fund to account for the reduction in revenue as a result of the zero-rate relief in secondary Class 1 contributions as introduced by the Bill for employers of free ports employees and the employers of forces veterans. I would like to explain to noble Lords why the Government consider that such an amendment is unnecessary. However, to start with, it may be helpful to provide some background on how the National Insurance Fund operates. Obviously, this is for the benefit of the Committee; I am aware that the noble Lord, Lord Davies, will be well versed in this particular matter. I will not go into the history too much, but it may be helpful for the Committee.
The majority of NICs receipts are deposited into the NIF, which in turn funds most contributory benefits, including the state pension. The NIF is funded on a collective basis, meaning that today’s NICs receipts pay for the benefits being paid today. In 2021-22, the Government Actuary’s Department estimated that total NICs receipts in the NIF would equate to approximately £122 billion, exceeding the £112 billion in benefit payments and associated costs. The cost of the veterans and free ports reliefs are therefore small in comparison to the NIF’s surplus and will not impact on the NIF’s ability to pay out contributory benefits.
Furthermore, the Government already have an established process in place to ensure that the NIF always maintains a sufficient working balance to continue to pay out contributory benefits. It has been the practice since 1983 to maintain a balance of at least one-sixth of projected annual benefit expenditure—in broad terms, two-months’ worth of benefit expenditure—to be able to deal with unexpected contingencies. As the NIF has no borrowing powers, Section 2 of the Social Security Act 1993 permits the Treasury to pay a grant from the consolidated fund into the NIF up to a specified percentage, at almost 17%, of estimated benefit expenditure.
Before the start of each financial year, the Government use the information provided by the Government Actuary’s Department in its uprating report to determine a ceiling for the grant that may be paid in the following year which is then subject to approval by Parliament. For example, in the 2021-22 financial year, the Government legislated for a Treasury grant provision of 17%, although, given the current surplus of the NIF, this provision is not needed to be drawn upon. This secondary affirmative legislation was debated by noble Lords on 8 February 2021. Therefore, we feel that such a provision that the noble Lord has proposed is unnecessary as the Government already have the ability to top up the National Insurance Fund should they need to.
A wider point has been made, particularly by the noble Baroness and the noble Lord, Lord Davies, on the legitimacy of this. However, there are already reliefs in the NICs system with regard to the employment allowance, the under-21 relief and the under-25 apprentice relief. I therefore reassure the Committee that this policy and the thinking behind it is not new, and that obviously it is used for different purposes.
Finally, if such an amendment was passed by this House, it would likely engage the financial privilege of the other House.
With those assurances, I hope that the noble Lord will withdraw the amendment in his name.
Lord Davies of Brixton (Lab)
I will withdraw the amendment. I will read carefully what the Minister said, but I maintain my position that there is a point of principle here. I agree that there are precedents for using national insurance relief, but I was not here then so I was unable to raise it. I am raising it now because, as I said in my introductory remarks, I believe in a national insurance system and the National Insurance Fund. If it is to be treated as just a source of general taxation, which effectively this does, it dilutes the principle. I shall read what the Minister said, and I thank him for his reply.
Baroness Kramer
Member’s explanatory statement
This amendment would require the Treasury to make a designation under section 10(2)(d) by regulations, as recommended by the DPRRC.
Baroness Kramer (LD)
I thank the noble Lords, Lord Davies and Lord Tunnicliffe, for a little relief from leading off. I shall be very brief. Amendments 6, 8 and 9 again revert to the recommendations of the DPRRC.
I start, briefly, with Amendment 6. I really do not understand the Government’s argument that they should be able to create new self-isolation support schemes and make them exempt from NICs without even alerting Parliament, never mind providing any public notice or any means of scrutiny. That is the problem that Amendment 6 seeks to tackle.
The Treasury’s view, as I understand it as written in the legislation, is that it can create as many schemes as it likes without a statutory instrument, provided that, in its view, they are “similar” to the schemes listed in the Bill. I deal on such a frequent basis with the Treasury, and the Treasury’s view of “similar” is, frankly, as long as a piece of string.
This turns into yet another precedent for being able to create all kinds of schemes, with just some sort of underpinning or general linking theme, without any scrutiny. All that the DPRRC asks is that these powers should be subject to a negative resolution. At least then there would be something that the public can look at and some element of scrutiny. That is not a big ask and one that the Government should be prepared to provide.
Amendments 8 and 9 are rather different, in that they would require affirmative rather than negative resolution for all of Clause 3, not just Clause 3(3), all dealing with free ports, and Clause 6, which deals with NICs relief for veterans. I cannot understand the Government’s position that the Henry VIII powers they seek are, again, trivial; I am entirely with the DPRRC on this. The various subsections in Clause 3 enable free ports to be extended to 2031 and widely change the conditions to be met. Surely that needs affirmative resolution. Similarly, in a strange way, Clause 6 sets no limit on the number of years that can be added to the veterans scheme and how often. Again, surely that is sufficiently significant, as the committee said. With the free ports issue, I would say that in some cases it is even controversial. I am very grateful to the DPRRC for its vigilance, and the arguments for Amendments 8 and 9 is that the provisions are of a standing that meets the test for an affirmative rather than a negative resolution.
Lord Tunnicliffe (Lab)
My Lords, once again, I welcome the various amendments tabled by the noble Baroness, Lady Kramer. I am pleased to support them and remain disappointed that the Government are refusing to accept any of the DPRRC’s modest suggestions. As with the previous amendment on this topic, we will hear the Government’s defence arguments for these additional delegated powers. The Minister suggests that, in relation to Clauses 3(1) and 6(6), considering the extension of NICs relief beyond the original end dates is somehow not a worthwhile use of parliamentary time. I am not sure why the Minister feels able to speak on behalf of Parliament in this matter. I can assure him that I would find a debate on the opportunity cost of extending NICs reliefs for free ports far more worthy of debate than some of the very narrow debates we hold on Treasury instruments subject to the affirmative procedure. He may counter that I and the noble Baroness, Lady Kramer, would be welcome to table regret Motions, but this ignores the principle that Parliament should be afforded a proper scrutiny role when it comes to the use of public finances. I will not go through each of the other justifications in the Minister’s letter to the chair of the committee, but suffice it to say that I am yet to be dissuaded from backing the committee’s recommendations.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Baroness, Lady Kramer, who is back on her feet again, and the noble Lord, Lord Tunnicliffe, for their contributions. These amendments are in response to the Delegated Powers and Regulatory Reform Committee’s report. I am grateful for its report and sympathetic to its arguments for the importance of parliamentary scrutiny and consistent publication of primary and secondary legislation. However, the Government believe that the current procedures remain appropriate and that these amendments are therefore unnecessary. I have listened carefully to the remarks from the noble Baroness and the noble Lord and, as they would expect, would like to give some explanation for our reasons, at some length.
Amendment 6, tabled by the noble Baroness and the noble Lord, would make the power in Clause 10(2)(d) subject to the negative procedure, rather than no procedure. I will explain to noble Lords some of the context to this power. Lump sum payments of £500 are available to be claimed under separate schemes in England, Wales and Scotland for people who have been asked to self-isolate by the relevant authority, but who cannot work from home and will suffer financial consequences as a result. Of course, this is subject to the eligibility criteria of the relevant scheme. Payments are intended to provide additional financial support during periods of self-isolation.
Regulations have already been introduced under existing powers in Section 3 of the Social Security Contributions and Benefits Act 1992 to exempt these payments from NICs for employees and their employers. Therefore, all that Clauses 10(1) and 10(2)(a) to (c) do is specify that the schemes specified are also exempt from self-employed NICs, ensuring consistency. The Government believe that the power designating self-isolation support schemes to be exempt from self-employed NICs is narrowly drawn in that such schemes have to provide support for those who cannot work due to self-isolation. In addition, the Government’s intention is that they will use this power only where further regulations are made to exempt payments from possible similar future schemes from NICs for employees and their employers.
I want to pick up on that point, because the noble Baroness, Lady Kramer, asked how different such a designated scheme would be from those on the face of the Bill. I pick up on the word “similar”, which has been used to provide some flexibility as to the details of any future scheme. This is because the changing circumstances of the pandemic may mean that the detail of a scheme, for example its eligibility criteria, needs to be adapted to account for the latest situation faced by individuals required to self-isolate. Indeed, the three schemes specified on the face of the Bill have changed in their particular detail since introduction and are not identical to one another.
The Government are also of the view that, as the power to designate is necessary to be able to respond to the changing circumstances of the coronavirus pandemic as quickly as possible, the current parliamentary procedure is right given the current circumstances and means that the legislation can be introduced more quickly than the other side of the coin, which is a statutory instrument subject to the negative procedure.
Amendments 8 and 9, tabled by the noble Baroness, Lady Kramer, and supported by the noble Lord, Lord Tunnicliffe, would make the powers in Clauses 3(1) and 6(6) to extend the end dates of the free ports and veterans relief, and the power in Clause 3(2) to treat a condition of the free port relief as being met, all subject to the affirmative procedure. They are currently subject to the negative procedure. These amendments are also in response to the DPRRC’s report.
The powers in Clauses 3(1) and 6(6) provide flexibility for the Government to extend the reliefs past their current end date. In particular, the power relating to the free ports relief will allow the Government to extend the relief after a review into its effectiveness in meeting its policy intention in 2026, although any extension would be no further than 5 April 2031. Before they are extended, the Government will carry out an evaluation of the reliefs to ensure that they are effective. This takes us back to a previous debate. Once they have been evaluated, and should the Government’s view be that the reliefs should be extended, we believe that the negative procedure offers the opportunity for sufficient parliamentary scrutiny without using more of Parliament’s time than is necessary.
The Government believe that the powers in Clauses 3(1) and 6(6) should continue to be subject to the negative procedure. Both powers are wholly relieving and, as I set out, where this is the case, regulations are usually subject to the negative procedure. To be absolutely clear, the powers cannot be used to decrease the amount of relief that an employer can claim.
As to how the power in Clause 3(2) may be used, the department’s delegated powers memorandum gave an example of cases where people with certain protected characteristics are unable to meet the rule that, to be eligible for the relief, employees must spend at least 60% of their working time in the free port site. For example, a health condition or pregnancy may mean that an individual needs to work just from home for periods of time. The effect of these regulations would be to treat the 60% as being met so that the relief applies to employees who may not otherwise qualify.
In this case, the negative procedure also allows the Government to react much more quickly than if the affirmative procedure applied if external factors become apparent that would prevent employers qualifying for this relief. With that slightly extended response, I hope these reassurances will cause the noble Baroness to withdraw her amendment.
Baroness Kramer (LD)
My Lords, again, I will withdraw the amendment. If the Minister seriously thinks that a review of the whole free ports issue will be so completely uncontroversial that the consequences of that review can be implemented through a negative resolution, then he really misunderstands the sense of discomfort that exists around the whole free ports scheme and really has not been listening to Parliament’s level of concern. As I said, I will obviously withdraw the amendment, but I hope the Government will start to take note much more seriously of the work done by an extraordinary committee, with a great deal of knowledge and a real understanding of Parliament, its wishes and its intentions—as we know, we live in a parliamentary democracy—and pay much more attention to the level of scrutiny that the DPRRC recommends.
Baroness Kramer
“(2) Within six months of this section coming into force the Government must publish guidance to assist businesses in complying with their obligations under this section.”Member’s explanatory statement
This amendment would require the Government to publish guidance relating to Clause 11.
Baroness Kramer (LD)
My Lords, I promise I will be genuinely brief on what is our last piece of business in this Committee. I tabled Amendment 7 to seek reassurance. Sitting behind my amendment are actions that HMRC is taking to go after the promoters of tax avoidance schemes. I totally support that, and it makes sense that NICs avoidance schemes are tackled in the same way.
Lord Sikka (Lab)
My Lords, I was not going to speak but the eloquent speech of the noble Baroness, Lady Kramer, has persuaded me to say a few words. I do not think the DOTAS legislation, on which this particular legislation in this Bill is modelled, has been that effective. I have challenged the Minister and his colleagues on a number of occasions to name even one big accounting firm that has ever been investigated, disciplined or fined after the courts have said that their tax avoidance scheme was unlawful.
When it comes to national insurance, the Government themselves have created avoidance schemes. For example, there is no national insurance payable on unearned income. Accountants are busy—as they will be in these cases as well—converting income to capital gains as it attracts absolutely none. I sense in this Bill that the Government are playing to the Public Gallery saying, “We are really serious—we are going to clamp down on this kind of avoidance”, but they do not have the means to do so. There is no logic whatever as to why unearned income should be exempt; it is simply a way of avoiding.
When the Government talk about avoidance, I wonder, first, what they mean by that. We have had numerous disclosures, whether in the Paradise papers, Panama papers, or other leaks, which show that many of the national insurance tax avoidance schemes have been marketed by offshore entities. The Government are in absolutely no position to go after those enablers and have not done so.
I am just giving more fuel and ammunition to the arguments put by the noble Baroness, Lady Kramer, that the Bill is all about public impression management. That is why I have stayed silent for so long and why I did not table any amendments—because fairly soon after this is implemented, we will hear, just as with the previous free port legislation, that it will not achieve very much.
Lord Tunnicliffe (Lab)
My Lords, I welcome the tabling of this amendment and hope the brevity of my contribution is not taken as evidence to the contrary. Amendment 7 asks the Government to publish guidance relating to the operation of Clause 11. It is my understanding that such guidance will indeed be published later this year; I would be grateful if the Minister will confirm that and perhaps give us some idea of when this year. I hope that, with the guidance, there will be a more general update on the Treasury’s and HMRC’s work in this area.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Baroness, Lady Kramer, once again, for her contribution. I hope to persuade her, with the information that I am about to provide, that her amendment is unnecessary. On this occasion, my remarks will be relatively short.
I am pleased that the noble Baroness has raised this point, because communication is extremely important. HMRC will be publishing detailed guidance which will cover the changes to the DOTAS regime, explaining when HMRC can issue a notice requiring promoters or suppliers in the avoidance chain to provide information on suspected avoidance schemes. It will also explain what will happen if they do not provide information, or where they do and HMRC considers the scheme is notifiable, the issue of the scheme reference number—the so-called SRN—their right of appeal against the issue of the SRN, and their right to make representations before HMRC publishes details. Finally, the guidance will explain the obligations of the promoter or supplier if the SRN is not withdrawn.
I can say to the noble Lord, Lord Tunnicliffe, that the new guidance is anticipated for the end of February this year, but it will not adversely impact small businesses that do not participate in avoidance schemes.
I turn to a question from the noble Lord, Lord Sikka —and I appreciate his late intervention and contribution in Committee. First, he asked why NICs are not due on unearned income. He may know this, but national insurance contributions are part of the UK’s social security system, which is based around the long-standing contributory principle and centred around paid employment and self-employment, with employers, employees and the self-employed paying towards the protection of those who have been in the labour market. Payment of NICs builds an individual’s entitlement to claim contributory benefits, which then replace earnings in certain circumstances—for example, if someone is unable to work or, indeed, has retired. Unearned income is generally excluded from liability to NICs, as it is not derived from paid employment.
The noble Lord also asked about tackling the promoters of tax avoidance and what success had been had in that regard. I took note of his points about DOTAS and appreciate his raising this issue. HMRC has undertaken more than 500 compliance interventions on promoters and their supply chains—that takes account of the year 2020-21. However, there is no single approach that will force all promoters to leave the market, and it requires a multipronged approach. This includes HMRC prioritising the most active promoters and their supply chains, and vigorously challenging schemes and promoters under the disclosure of tax avoidance schemes, or DOTAS, as we are discussing today, the promoters of tax avoidance schemes, or POTAS, and the enablers regime. The Government have taken strong action to tackle tax avoidance and those who promote it, introducing a number of anti-avoidance regimes that have helped reduce the avoidance tax gap from £4.7 billion in 2005-06 to £1.5 billion in 2019-20.
I hope that, with those answers, the noble Baroness will withdraw her amendment.
Baroness Kramer (LD)
My Lords, I make the slightly ironic comment that, in the speech the Minister just made, he essentially made the case for the amendment of the noble Lord, Lord Davies, dealing with the integrity of the National Insurance Fund. “Interesting”, as they say.
Yes, of course I will withdraw the amendment. I just desperately hope that, internally, we can try to get HMRC to take a much more interactive view of how to talk to small businesses, in particular. We fully recognise that people are captured by the many different fraud schemes that are around every day. In a sense, these various promoters of tax avoidance schemes use the same psychology, methodology and ability to communicate to identify potential victims. Somehow, HMRC has to be able to get down to that level and communicate with businesses so that they understand the real risks they are taking. I recognise that my amendment would not actually achieve that, but I hope that it created an opportunity for a small discussion. I beg leave to withdraw the amendment.
House of Lords
Death of a Member: Lord Hughes of Woodside
The Lord Speaker (Lord McFall of Alcluith)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Hughes of Woodside, on 7 January. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
Care Workers: Professional Register
(2 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Young of Cookham
To ask Her Majesty’s Government what plans they have to introduce a professional register for care workers.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
We will invest at least £500 million in the social care workforce over the next three years. The major investment includes the introduction of a digital care workforce hub. This hub will help identify people working in social care and provide them with access to resources to help them in their careers. It will also include a skills passport to provide staff with a permanent record of their training and development over their career.
Lord Young of Cookham (Con)
My Lords, I am grateful for that reply. In his letter to us today on NHS resilience, the Secretary of State says:
“Social care is vital for our success in managing Covid-19, working as part of a single system with the NHS.”
We all agree that we need to integrate the NHS and social care and provide a high-quality, seamless service to users, but as long as those in the social care profession are seen as the undervalued poor relations of those in the health sector, such integration is going to be very difficult. Scotland, Wales and Northern Ireland have already introduced a registration scheme, offering professional skills and better working conditions for those in social care and making it a more attractive career profession. When will England do the same?
Lord Kamall (Con)
As my noble friend rightly points out, the devolved Administrations have registers in place in Scotland, Wales and Northern Ireland and they have taken a phased approach over the years to registers of staff working in a variety of roles across social care, because of the complexity of the sector. This is why our first priority is to embed a knowledge and skills framework to clearly understand the current layout of the workforce and the skills required in their roles and to look at potential pathways before we consider mandatory regulation.
Lord Laming (CB)
My Lords, I am sure the Minister will agree that if the pandemic has taught us anything, it has confirmed that those in need of social care are much more dependent now and much more vulnerable. They require very intensive personal care. That being so, is it not time that we recognised carers for what they are, because apart from their commitment, they display enormous skills, day in and day out, and people at the end of their life are dependent upon them?
Lord Kamall (Con)
I am sure all noble Lords will agree with those sentiments, and that is why we have published the White Paper on social care. We are investing an additional £5.4 billion over three years and we want to make sure it is a career that people feel valued in. We also have £3.6 billion to reform the social care charging system, to make sure that all local authorities can move towards paying care providers a fair rate for their care, and a further £1.7 billion to begin major improvements across the whole social care system in England.
Lord Watts (Lab)
My Lords, I suggest that the Minister introduces a national pay system that reflects the work that these people do and rewards them for their efforts. Unless he addresses the issue of pay, the rest will not make any difference.
Lord Kamall (Con)
As the noble Lord says, pay is one of the important issues when people consider what career to take, but also how much that career is valued. One of the reasons we are looking at this voluntary register, but also the skills passport, is to understand the current layout of the sector. There are a number of different qualifications at the moment and before we consider what should be mandatory and make sure that everybody is aligned in terms of qualifications, we want to understand the care force out there. Some 56% of those in the care sector, for example, do not have any qualifications and we want to make sure that we address that.
Lord Forsyth of Drumlean (Con)
My Lords, the Economic Affairs Committee report of some two years ago estimated that £8.6 billion was needed just to get back to where we were 10 years ago. This money, which the Government are promising, is not available now. The need is now and the Government themselves have said that they want to deal with the problem of beds that are blocked in the NHS. That can happen only if the care workers are there and encouraged to be so, and that is about training and pay. At the moment, really good, wonderful people get paid more for stacking shelves in Tesco than they get for carrying out this work. Will my noble friend persuade the Treasury that this money needs to be made available now?
Lord Kamall (Con)
My noble friend makes a very important point that we need to make sure that this is an attractive career and that people feel valued. One of the reasons we launched the Made with Care campaign in November, which is running over five months, is to attract more people to the sector. Some of the money we have made available is to make sure that the sector is more attractive to people who want to work in it and that people in local authorities push the care home owners to pay their staff more.
Lord Scriven (LD)
When providing care for some of the most vulnerable in our communities, staff such as art therapists and occupational therapists have to have mandatory registration to practise. What is so different for social care staff who provide professional care as part of a multi-disciplinary team to such vulnerable people?
Lord Kamall (Con)
Only last week we opened a consultation on whether or not to make registration mandatory and to move towards it. When I spoke to people in the department about why it is currently voluntary and not mandatory, they said it was because they did not want to inadvertently put people off registering. They were worried that some people might leave the sector if registration was mandatory now. The noble Lord can shake his head, but this is a very real concern. We want to make sure it is voluntary first and we are consulting on the steps towards mandatory registration.
Baroness Wheeler (Lab)
My Lords, the noble Lord’s Question is timely, with the Government’s consultation on future statutory regulation and the criteria that could form the basis of assessing whether regulation is appropriate. We all want to see care workers given the professional status that they deserve, but, as has been said, this needs a whole suite of key improvements on pay, training, career structure and development. Does the Minister agree that paying staff a wage that truly reflects the importance and value of their work is an essential first step and what action are the Government taking to ensure this?
Lord Kamall (Con)
As the noble Baroness will appreciate, many people who work in social care are employed by private care home owners and other bits of the sector. If she looks at the minimum wage, there has been an announcement of 6.6%, effective from 1 April, which means that workers will be paid more, but one of the bases of some of the additional funding that we have announced is to convince local authorities to put pressure on private care home owners and others to make sure that they pay staff more.
Baroness Finlay of Llandaff (CB)
Given that the Government have clearly expressed the view that social care must be adequately valued, which is to be welcomed, and the comments about pay scales, what is the Government’s attitude to those employers in the private sector who do not hand on pay at time-and-a-half on bank holidays and so on, to their front-line staff? These front-line staff feel exploited and do not receive any pay or reimbursement for travel time between clients, even though they may spend quite a lot of time on the road. They are paid only while they are actually in somebody’s home in the community.
Lord Kamall (Con)
Issues such as the way private care home owners treat their staff are all part of the consultation that we launched on 6 January. We are working across government and with the devolved Administrations to seek views on the proposed criteria on which the profession should be regulated, whether there are regulated professions that no longer require statutory regulation, and whether there are unregulated professions that should be brought into statutory regulation. The consultation will run for 12 weeks until 31 March, when we will look at the results before taking further action.
Lord Hamilton of Epsom (Con)
My Lords, was the Spectator right when it said that 25% of people over 65 were worth more than £1 million, and is it right that these people should have capped care costs of £86,000, which means that taxpayers on much lower incomes have to pitch in and support them?
Lord Kamall (Con)
As my noble friend will appreciate and probably anticipate, there will be debate on the Health and Care Bill for the next few weeks. I am sure that that is one of the issues that will come up.
Lord Jones (Lab)
My Lords, can the Minister tell us how many care workers there are at work on a given day? Does he agree that it would be a good idea to have a considered, perpetual publicity campaign persuading those in the care service of the importance of gaining qualifications?
Lord Kamall (Con)
To ensure that the profession is attractive, we want to focus not only on making sure that social care staff are paid a decent wage but that they are recognised. The idea behind the skills passport is, first, that we want to understand all the different qualifications that there are with regard to the social care sector; and, secondly, we want to make sure that they can transport that when they move from one employer to another. That is the important thing that we want to look at.
Post Office: Horizon Compensation
(2 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Bakewell
To ask Her Majesty’s Government what steps they are taking, if any, to expedite the payment of compensation due to postmasters and mistresses as a result of the Post Office Horizon IT scandal.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, the Government are working closely with the Post Office to ensure that the approach and processes adopted are being designed to ensure that postmasters receive fair settlements as swiftly as possible. Of the 72 postmasters who have so far had their convictions quashed, 66 have applied for interim payments, of which 62 have received offers; 57 of those have been paid. The Government are also ensuring that the historical shortfall scheme is delivering in line with its objectives.
Baroness Bakewell (Lab)
My Lords, the Post Office scandal involved some 732 prosecutions over a 20-year period. Many convictions have since been overturned. Can the Minister say how many claims have now been settled, how many remain outstanding and what the total cost will be?
Lord Callanan (Con)
I gave the noble Baroness the figures on those who have had their convictions overturned so far. Interim payments of £100,000 each have already been made to many of them. We are attempting to negotiate with the rest of them; payments will be made as quickly as possible. It will then go to the dispute resolution process, which we think will be quicker than any ongoing further court action, to negotiate appropriate settlements with those sub-postmasters who were wrongly convicted.
Lord Arbuthnot of Edrom (Con)
My Lords, what matters will be covered by the compensation announced last month for those sub-postmasters who have had their convictions overturned? It will include financial loss, obviously, but will it also cover loss of reputation, pain and suffering, and consequential loss? How will the Government ensure consistency over the many different types of cases that there will be?
Lord Callanan (Con)
I start by paying tribute to the work of my noble friend in both this House and the other place in drawing attention to this scandal when many others were not discussing it; he was right to do so, along with many other Members on all sides. I can confirm that, when negotiating compensation for postmasters with overturned convictions, the Post Office will consider claims for financial and consequential losses as well as non-financial losses, such as reputational damage and mental distress. In terms of consistency, each case will necessarily be decided on the particular circumstances of the individual postmaster but, to ensure broad consistency, the Post Office and its legal advisers will seek to agree a consistent approach in assessing the different heads of loss with legal representatives.
Lord Berkeley (Lab)
My Lords, my noble friend Lady Bakewell said in her follow-up question that there had been 732 convictions. From the Minister’s Answer, I get the impression that only 10% of those convicted have actually had their cases heard. Is that correct? When does he see that the whole process will be completed?
Lord Callanan (Con)
The noble Lord makes a good point but this is in the hands of the court. So far, 72 people have had their convictions overturned. As soon as the others have had their convictions overturned, we will proceed with offering compensation to them as well.
Baroness Hoey (Non-Afl)
My Lords, the postmasters and postmistresses were treated shockingly by the Post Office. Can the Minister tell us whether anyone in the Post Office seniority has been reprimanded or sacked or had money taken off them? Has anything happened to anyone? Has anyone in the Post Office taken responsibility for this appalling treatment of men and women?
Lord Callanan (Con)
“Shockingly” is almost an understatement of the full extent of the terrible injustices that went on for sub-postmasters over many years and many different Governments, Ministers et cetera. Most of the senior executives of the Post Office who were responsible are not there anymore, but the appropriate mechanism to find out exactly who was to blame and who was responsible is the independent public inquiry with full statutory powers, which is currently considering these matters.
Lord Fox (LD)
My Lords, this is not the first time that your Lordships have had to discuss this, and already this year we have this Question again. I am sure that the Minister would agree that, for these people to start to live the rest of their lives, they need to draw a line and be able to move on. This process is dragging on, so does the Minister agree that by setting a target—a political target that the Minister can set—with his department, with the lawyers and with the Post Office, we could get this done? Will he undertake to do that, and make sure that this is done in the first half of this year, so that the line can be drawn?
Lord Callanan (Con)
I can speak for my colleague Paul Scully, the postal affairs Minister, that we want to see this settled as quickly as possible in order, as the noble Lord said, to draw a line under it for the benefit of those people who were so badly affected. Of course, we are in the hands of the courts initially for the convictions to be overturned, but as soon as they are—if that is the judgment that the courts come to—we want to use the ADR process to try to get compensation offers to these people as quickly as possible.
Lord Polak (Con)
My Lords, I have raised the plight of my friend Rita Threlfall on a number of occasions. She is one of the 555 sub-postmasters and mistresses who initiated the group litigation. They won, and were awarded £57 million. However, £46 million went on costs and funding the action—action that helped lead to today’s situation. They were thanked by the Government, but their compensation was woefully inadequate. Will the Minister ensure that the 554 plus Rita are properly compensated? At the moment, their feeling is not of compensation but of discrimination.
Lord Callanan (Con)
I totally understand the point that my noble friend is making; we have spoken about it on a number of times in the past. The problem, of course, is that this compensation settlement that was reached in a civil action was in full and final settlement of the claims. However, having said that, my colleague Paul Scully has met with them many times and has said that we are in active discussions with them to see what more could be done. Indeed, officials are meeting this week with lawyers representing them to discuss it.
The Lord Bishop of Leeds
My Lords, will the Minister say whether, following on from that question, those who are currently negotiating compensation with the Post Office for some form of redress are having their legal costs paid, or are they expected to pay them and then try to claim them back later?
Lord Callanan (Con)
I am not sure of the precise details of that; I assume the right reverend Prelate means those from the historical shortfall scheme or those who have had their convictions overturned. My understanding is that all of their costs will be met, but if that is not right, I will write to him.
Lord McNicol of West Kilbride (Lab)
My Lords, hundreds of sub-postmasters and mistresses were sacked and prosecuted over the space of 16 years and wrongfully labelled as thieves and fraudsters by the Post Office and by our judicial system. Just to take the noble Baroness’s Question a bit further, what action if any has been, or will be, taken against Her Majesty’s Government’s representatives who sat on the board of the Post Office throughout this terrible situation?
Lord Callanan (Con)
I totally agree with the noble Lord on the first part of his question. The correct answer to that is to wait for the outcome of the inquiry. As we have discussed before, this went on for decades, and exactly who was responsible at the time, and who knew what and when, is a hugely complicated issue. Of course, many of the people responsible at those times are no longer in government, in the department or in the Post Office. It will be important to find out who exactly who was responsible over a long period of time, and then we can pin the appropriate blame.
Lord Anderson of Swansea (Lab)
My Lords, to accelerate things and bring an end to the scandal, would the Government consider a scheme similar to that which applies to personal injury cases, to agree guidelines or bands within which a settlement could be reached so that legal advisers can properly give advice to those who have suffered as a result of the Post Office injustice?
Lord Callanan (Con)
As I outlined in my earlier answer to my noble friend Lord Arbuthnot, we will of course take all the circumstances into account, but necessarily it is important to look at the individual circumstances of each of the postmasters who were wrongly convicted and had their conviction overturned. We want to ensure that everybody is appropriately and fairly compensated within the appropriate bands and will do so.
Baroness Redfern (Con)
My Lords, we hear many tragic cases of people who have lost their liberties and lives and faced years of financial hardship. Can the Minister clarify what role the National Federation of SubPostmasters played in the Horizon scandal, in terms of representing affected sub-postmasters, and the damage that Horizon has caused to the relationship between the Post Office Ltd and postmasters? Finally, will this impact on the post office network, going forward?
Lord Callanan (Con)
The answer to my noble friend’s last question is no. The funding for the post office network is separate to this. It provides a vital service, and we must ensure that it continues. I do not know the answer to her question on the precise role played by the National Federation of SubPostmasters, but from discussions that I have had with senior management of the Post Office I know that they are very keen to ensure that relations with people who provide the day-to-day services for their organisation is improved and they are much better represented in the future than they were in the past.
Prime Minister: Meetings with First Ministers of the Devolved Governments
Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government when the Prime Minister last met the First Ministers of the devolved governments, and what matters were discussed at those meetings.
Viscount Younger of Leckie (Con)
My Lords, the Prime Minister held bilateral calls with the First Ministers of Scotland and Wales and the First Minister and Deputy First Minister of Northern Ireland on 17 December. They discussed the collective response to omicron, including any financial support needed for additional measures, and confirmed plans for further engagement. The UK Government and the devolved Governments continue to work together during this pandemic to save lives and livelihoods across the UK.
Lord McConnell of Glenscorrodale (Lab)
My Lords, I am sure that I speak for many Members of your Lordships’ House when I say that we are disappointed that the four Governments of the United Kingdom continue to exhibit such difference in policy and execution of policy in the course of the Covid-19 pandemic. That said, can we have a guarantee from the Government that there will be proper co-ordination between the four Governments in relation to any post-Covid inquiries, allowing for the economic, social and health impacts of the policies of these four Governments during the Covid pandemic to be analysed for their impact, including, for example, their impact on teenage suicides, which are not publicised uniformly across all four Governments and which should certainly be part of the overall assessment of impact afterwards?
Viscount Younger of Leckie (Con)
Certainly the tragedies of teenage suicides affect the whole of the UK. The new intergovernment review structure is set up to allow closer co-operation and in-depth discussions between the devolved Governments on strategies to tackle matters such as this very important point that the noble Lord has raised. Engagement going forward into 2022 can be at three levels: portfolio engagement at official level; interministerial standing committee level; and, of course, higher up at the heads of devolved Government council level.
Baroness McIntosh of Pickering (Con)
My Lords, given the recent new customs regulations that came into force for goods moving from the UK to the EU on 1 January, can my noble friend give the House an update on recent developments on framework agreements between the four nations of the UK?
Viscount Younger of Leckie (Con)
I can say that, in terms of Northern Ireland, which is the gist of the question, there are some significant issues to resolve and people and businesses in Northern Ireland are facing these daily. The Foreign Secretary, who has taken over from my noble friend Lord Frost, is committed to finding a resolution and proceeding talks with renewed urgency on matters such as those that my noble friend has raised.
Lord Bruce of Bennachie (LD)
My Lords, given that the difference in policy applications across the nations has not led to much difference in outcomes, is not the reality that we need a more co-operative approach across the UK? The Prime Minister said that devolution was a disaster. Does he not have to work twice as hard now to show that it can be a constructive and co-operative partnership and that the devolved Administrations are valued as part of the team?
Viscount Younger of Leckie (Con)
Yes, indeed. The review, which is due to be published shortly, sets out a fit-for-purpose system that allows for meaningful and effective engagement between the UK Government and the devolved Governments. As I said earlier, this was achieved by discussions occurring at the portfolio level, where possible, and within the particular groups. The package also contains commitments to transparency and a robust dispute resolution mechanism founded on the principle of dispute avoidance.
Lord Morris of Aberavon (Lab)
My Lords, since science knows no frontiers—and as New Year’s Eve showed, our citizens travelled between the countries of the UK—what efforts has Westminster made to agree common policies with the devolved Governments for dealing with the pandemic?
Viscount Younger of Leckie (Con)
As the noble and learned Lord will know, there are constant meetings regarding the pandemic with the Chief Medical Officers, but the Prime Minister himself is Minister for the Union and he met the First Ministers three times last year—there were meetings in June and October and bilateral calls in December. But it is more than this: last year there were more than 350 meetings at ministerial level. Co-operation is getting better and will certainly improve in 2022 after all the discussions on the IGR.
Lord Forsyth of Drumlean (Con)
My Lords, is not the fact of the matter that the Prime Minister made the right judgment and the right call, and in England people were able to celebrate new year? In Scotland, for the first time ever, hogmanay celebrations were prevented, resulting in people having to go south of the border. It is a bit rich to blame the United Kingdom Government for the mistakes of the Scottish Parliament.
Viscount Younger of Leckie (Con)
I take my noble friend’s point, but of course, as the House will know, it is up to the devolved Governments to make decisions themselves, based on the back of discussions that continue to take place between the four Governments.
Baroness Hayman of Ullock (Lab)
My Lords, Crisis has found that the economic aftermath of the pandemic risks exacerbating levels of homelessness right across the UK, but it has also praised the work of the Welsh Government and their measures to alleviate the immediate increase. Have the Government met with the Welsh Government to discuss best practice for reducing homelessness, and, if not, will he press them to do so?
Viscount Younger of Leckie (Con)
I certainly cannot say that they have talked specifically about homelessness, but, as a result of the improved co-operation and the increased number of meetings between the Governments, all matters of importance will be discussed during the rollout of the IGR during 2022.
Lord Wallace of Saltaire (LD)
My Lords, do the Minister and his colleagues recognise the impact on citizens in Yorkshire, the north-west and the north-east of England of the constant discussion of what is happening in London, Scotland, Northern Ireland and Wales and the neglect of what is happening in the other parts of England? Will Ministers take into account the regional dimension of the dominant part of the United Kingdom in the White Paper on levelling up, or will they continue to insist on imposing governors on counties and mayors on other regions?
Viscount Younger of Leckie (Con)
Levelling up all corners of the UK is at the heart of this Government’s agenda, and the White Paper, to be published early this year, will set out an ambitious vision to improve living standards, increase opportunity and grow the private sector in all parts of the UK. This will take account of the noble Lord’s question on Yorkshire.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I am happy that William Wallace got in before me on this particular question. There are issues beyond the pandemic that need to be discussed between the four Governments. Is the Minister aware that there have been terrible cancellations of ferries to the islands of Scotland? Indeed, the other week 13 of the 14 Arran ferries were cancelled in one day. In the meantime, the ferries that the Scottish Government commissioned, which were supposed to be ready two years ago, are now rusting in the Ferguson yard on the Clyde. Will the UK Government put this on the agenda of the next meeting and consider how they can give some assistance to the failing Scottish Government in relation to ferries to the Western Isles?
Viscount Younger of Leckie (Con)
This perhaps reflects the tone of the question from my noble friend Lord Forsyth. I have no idea whether ferries have been discussed, but again, this is just the sort of matter that could be discussed, given the greater co-operation that will take place as a result of the discussions over the last two to three years with the devolved nations. I will certainly take back the point made by the noble Lord.
Lord Anderson of Swansea (Lab)
My Lords, co-operation is good, as are accountability and dispute resolution. But devolution began as a process. Do the Government agree with that, and do they have any proposals to put before the Ministers of the devolved Administrations about further elements of devolution?
Viscount Younger of Leckie (Con)
The noble Lord is right to say that this has been an evolving process. There are no plans to take it further. Obviously, the whole process of devolution and the matters arising from it, and the links and co-operation between the four devolved nations, will continue to be discussed. The idea with the IGR is that all four will be treated equally, there will be transparency, and there will be reviews.
Lord Hamilton of Epsom (Con)
Following up on the question asked by the noble Lord, Lord Anderson, do the Government agree with the previous Labour Government, who said that devolution for Scotland would strengthen the union?
Viscount Younger of Leckie (Con)
I can only repeat that devolution for Scotland has, of course, been rolled out in the same way as devolution for Northern Ireland and Wales. We believe that it works well, but, as I said earlier, we continue to monitor it and to make sure that the effective co-operation and links between the four nations continue as they are.
Lord West of Spithead (Lab)
My Lords, I invited the noble Lord, Lord Foulkes—oh, I see that the noble Baroness, Lady Jones, wants to speak. You are unaffiliated, are you not, so I shall let you go.
Baroness Jones of Moulsecoomb (GP)
Thank you so much. What a gallant gentleman.
I am quite curious about the dynamics of these meetings, and I wonder whether Westminster goes in with any sort of listening attitude. The Scottish Government are now much greener than the Westminster Government, and I suggest that Westminster could learn a lot.
Viscount Younger of Leckie (Con)
I am sure that the new Minister for Intergovernmental Relations, my right honourable friend Michael Gove, will have taken this on board. He, of course, is the one tasked with taking forward the main links with the four devolved Governments. As the noble Baroness will be aware, that has been set up recently—and he is very much up and running.
Authors, Booksellers and Libraries: Economic Recovery
(2 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Earl of Clancarty
To ask Her Majesty’s Government what steps they intend to take to support the economic recovery and growth of authors, booksellers, and libraries, in England after the pandemic.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, Her Majesty’s Government are committed to supporting the UK’s world-leading publishing industry. We support all parts of the literary ecosystem, with libraries, for instance, benefiting from the £5 million libraries improvement fund, and authors from the annual £6.6 million public lending right. Booksellers, too, are central to the Government’s build back better high street strategy, which will ensure that businesses are profitable and resilient as we emerge from the pandemic.
The Earl of Clancarty (CB)
My Lords, despite the interest in books shown by the public during the pandemic, many authors, like other freelancers, have suffered financial hardship and fallen through the gaps in support. Will the Government consider increasing the PLR fund, which has been frozen for the last seven years? Will they look, too, at business rates, which favour Amazon warehouses over high street bookshops? Bookshops are not just shops: in tandem with libraries and schools, they can, and often do, provide enormous social and educational value at local community level.
Lord Parkinson of Whitley Bay (Con)
I certainly agree with what the noble Earl says, and I am pleased to say that the Booksellers Association reports that independent booksellers have increased in number over the last two years: more than 50 new independent bookstores were opened last year and the year before. That includes the excellent Forum Books in Whitley Bay, thanks to the encouragement of Ann Cleeves, the author of the Vera books, who, I am pleased to say, was awarded an OBE in the New Year Honours List for services to reading and libraries. The noble Earl is right to point to the plight of authors. A statutory instrument is being introduced today increasing the rate for the PLR. Authors also benefit from support from Arts Council England, including through its “time to write” grants—so they are in the Government’s mind.
Lord Cormack (Con)
If the Government genuinely agree with the noble Earl, when are we going to do something about this unfair competition between Amazon and the high street bookshop? Amazon may be good, but people can browse in a bookshop, and they should be able to do it without fearing that the bookshop will close.
Lord Parkinson of Whitley Bay (Con)
As I said, the Booksellers Association reports that the number of independent bookshops has grown over the past 22 months. Its membership is up 12% since the pandemic began. As my noble friend knows, we will continue to consider the arguments for and against an online sales tax which, if introduced, would raise revenue to fund business rates reductions.
Baroness Rebuck (Lab)
I would like to ask the Minister about the current consultation on a change to UK copyright law relating to the UK’s future IP exhaustion regime, the impact of which could be far reaching for authors. Does he share my concern that, according to the Publishers Association, a move to international exhaustion could cost authors more than £500 million a year in lost income? The Minister will know that the author community is very concerned about this. I declare an interest as a non-executive director of a publishing house, as stated in the register.
Lord Parkinson of Whitley Bay (Con)
As the noble Baroness will know, this matter is being led by the Intellectual Property Office, but it is clearly a complex matter which touches on not just the work of DCMS but other government departments. Officials across government are analysing the responses before Ministers are able to make an informed decision on the UK’s future approach. It is very much a case of measuring twice and cutting once rather than rushing forward into a decision and bearing the consequences later.
The Lord Bishop of Gloucester
My Lords, as pro-chancellor of the University of Gloucestershire I am very aware that during the time of pandemic there have been issues with ebooks relating to university libraries. How will the Government address the current issues of excessive pricing, restrictive licensing and lack of availability of academic ebooks?
Lord Parkinson of Whitley Bay (Con)
My Lords, that it is a matter for publishers and their academic customers. I am pleased to report that ebook sales have increased during the pandemic, so people are continuing to buy them, but I will take that point back to the department.
Lord Foster of Bath (LD)
My Lords, does the Minister agree that to ensure that authors get fair recompense we should do far more to ensure that readers are accessing legitimate books, not least by removing illegitimate material online? Will he tell us what progress has been made in developing the codes of practice to detect and remove illegal content, as committed to by the Government in the creative industries sector deal of 2018.
Lord Parkinson of Whitley Bay (Con)
This is a matter which has been touched upon in relation to the review of intellectual property rights. The consultation brought forward concerns in the sector about the unauthorised reproduction of books, so it is being looked at. I will write to the noble Lord on the follow-up work that has been done in the meantime.
Viscount Colville of Culross (CB)
My Lords, the proposed procurement Bill is supposed to make procurement more accessible to small businesses by ensuring that the social value of contracts is considered when choosing suppliers. Can the Minister assure the House that social value will include supporting local booksellers and suppliers when considering the procurement of books for local libraries and schools?
Lord Parkinson of Whitley Bay (Con)
That is a matter for my colleagues at BEIS, but I will certainly take the noble Viscount’s point forward.
Baroness Merron (Lab)
My Lords, while independent booksellers are indeed showing signs of a hopeful comeback, as the Minister said, it is important to acknowledge that there are closures as well as openings of new shops which are still up against the might of online delivery services and chain shops. What consideration are the Government giving to reducing barriers for small, independent bookshops which are, after all, livening up our high streets and making book buying and reading more appealing? Will the Minister discuss business rates or small tax incentives with his Treasury colleagues to allow independent booksellers to survive and be able to support their local communities?
Lord Parkinson of Whitley Bay (Con)
The noble Baroness is right. Despite the encouraging news, challenges remain for independent booksellers as we emerge from the pandemic. That is why the Government have put in place one of the world’s most comprehensive economic responses worth £400 billion to protect jobs, businesses and public services throughout the pandemic. We have provided support through the Coronavirus Job Retention Scheme, business rates relief for eligible high street retailers, grants for small businesses and government-backed loans. We have also protected commercial tenants from eviction and debt enforcement because of non-payment of rent until March 2022.
Lord Vaizey of Didcot (Con)
My Lords, it goes without saying that the PLR should be doubled, and that will be an easy win for my noble friend. I declare an interest as I work with the Authors’ Licensing and Collecting Society. On libraries, within central government there needs to be much more co-ordination between the levelling-up department, the Department for Education and the Minister’s excellent Department for Digital, Culture, Media and Sport. I urge my noble friend, who has a very busy diary, to meet entrepreneurial figures, such as William Sieghart, who are pioneering new ways of providing library services to ensure that libraries continue to be relevant in the 21st century.
Lord Parkinson of Whitley Bay (Con)
Yes, I would be delighted to meet Mr Sieghart and anyone else who would like to make representations on behalf of libraries. Libraries are the bedrock of our communities. I am pleased to say that in the last year before the pandemic there were nearly 180 million visits to libraries. That is more than the combined number of visits to Premier League football games, the cinema and the top 10 UK tourist attractions and, of course, libraries have played such an important role in supporting people through the pandemic. I would be very happy to discuss that further.
Baroness Bull (CB)
My Lords, my noble friend reminded us that the pandemic has been particularly challenging for creative freelancers, including authors and writers. The Minister will also be aware of the challenges to his department in dealing with freelancers as a sector, given the breadth and diversity of the freelance community. What consideration have the Government given to the appointment of a freelance commissioner or the establishment of a freelance creative council to ensure that the concerns of freelancers are effectively represented and clearly understood?
Lord Parkinson of Whitley Bay (Con)
The Government provided some money just before Christmas to help freelancers working across the creative industries and the cultural sectors who were affected by the omicron wave of coronavirus. I am grateful to the noble Baroness, who I saw was making sure that that message was getting out to freelancers. I would certainly be happy to discuss with freelancers and their representatives the challenges that remain as we continue to face the pandemic.
Lord Boateng (Lab)
My Lords, the Minister’s warm words in support of libraries are welcome, but since 2010 more than 800 public libraries have closed and the number of qualified librarians employed by local authorities has decreased from more than 18,000 to just over 15,000. Warm words are all well and good, but what more practically can be done to support local authorities to keep libraries open and, where that fails, to support local communities themselves to keep libraries open?
Lord Parkinson of Whitley Bay (Con)
I do not recognise the figure the noble Lord cites. The dataset published by Arts Council England in August last year indicated that there have been around 200 permanent closures of static libraries in England over the decade ending December 2019. New data covering the period up to the end of December last year will be published in the coming months. The statutory duty is on local authorities to deliver a comprehensive system. The Secretary of State has a role to step in and encourage a public inquiry if that duty is not being met. The Government provide not just warm words but significant taxpayer funding to local authorities to deliver that statutory obligation and additional funding through the DCMS such as the library improvement fund and through Arts Council England, as I have mentioned.
Procedure and Privileges
The Senior Deputy Speaker
That the Report from the Select Committee Debates before second reading in Grand Committee; Update on pass-reader voting; Leave of absence (5th Report, HL Paper 122) be agreed to.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, I beg to move that the first Motion standing in my name on the Order Paper be agreed to. The most significant item covered in the Procedure and Privileges Committee’s report is our proposal to formalise a procedure for holding debates before Second Reading in Grand Committee. This change has been proposed by the Leader of the House and the Government Chief Whip, whose letter is annexed to our report.
We expect that the procedure will be used infrequently and for less complex and less controversial Bills to assist in business management. If a Grand Committee debate has been held before Second Reading, it would be expected that the Second Reading Motion in the Chamber will be taken formally.
The proposal is supported by the usual channels. The procedure itself will be used only following consultation with the usual channels and with the agreement of the House through a Business of the House Motion.
The other change proposed in our report, which gives rise to the second Motion in my name, is to amend Standing Order 21 on leave of absence to establish a process for refusing or terminating leave of absence where this is necessary for conduct purposes.
We made a similar recommendation in our third report in October, but, after the debate on pass-reader voting on 25 October, I withdrew my Motion to agree the report. We have now reflected further, including on the amendment tabled in October by the noble Lord, Lord Forsyth of Drumlean. We have decided to accept his amendment, and so the proposed new paragraph in Standing Order 21, as set out in the second Motion standing in my name, now says that the House “may” refuse or terminate leave of absence, not that it “shall” do so.
Finally, the report provides a further update on our thinking on the introduction of pass-reader voting. I seek no decision at this time but hope that this outline of our thinking will be of assistance to noble Lords. I beg to move.
Lord Grocott (Lab)
My Lords, I put on the record a specific point and a couple of statistics relating to the debates before Second Reading in Grand Committee, to which the Minister referred. I note that this measure was proposed by the Leader of the House and the Government Chief Whip, and relates to government Bills. I can see the case for—and certainly do not wish to oppose—making greater use of Grand Committee. This has been a fairly consistent theme over a number of years and, by and large, successful. If we can deal with more business more effectively, while still keeping to proper scrutiny, that is all to be desired.
Under this same procedure, the Second Reading debate can take place in Grand Committee and then has to be accepted by the House in the normal way; the House can still take possession of it should it wish to do so, but the debate is in Grand Committee. My question to the Minister is this: why does this proposal apply only, as I read it, to uncontroversial government Bills? It does not apply to Private Members’ Bills. I think that it should, and I would like the Procedure Committee to look at the case for that, particularly given the frankly shocking record on Private Members’ Bills.
I have corresponded with the Senior Deputy Speaker in the past about the shockingly low record of success for Private Members’ Bills that start in the Lords. For example, in the two-year Session 2019-21, 86 Private Members’ Bills were presented in this House. None of them received Royal Assent; in other words, none got through all the stages. Very few even get as far as the Commons—of course, we have no control over that. To take it even further, in the eight years since 2014, 363 Private Members’ Bills have been first introduced in the House of Lords. Of these, three have received Royal Assent; that is three in eight years, or an average of roughly one every three years.
One way of looking at this is that almost a deception is being practised on the public. All these Bills are being introduced with virtually no chance of success. Some, of course, do not deserve success, but one or two that spring to mind deserve acclamation.
Whatever one’s views about individual Bills, as the Senior Deputy Speaker said, this procedure would apply only to non-controversial Bills; it would have a limited application. But I can think of no good reason why we should not adopt this procedure for Private Members’ Bills. It would facilitate more of them getting through, earlier in the Session—and the earlier in the Session any Bill gets dealt with, the better its chances of getting through the various stages and into the Commons, where it stands a much better chance. I ask the Procedure Committee to look into this modest proposal, and hope for a successful outcome.
Lord Cormack (Con)
My Lords, I wonder what sprang to mind when the noble Lord was thinking of Private Members’ Bills. I do not want to touch on that, beyond saying that I endorse in broad terms what he said.
However, I am a bit concerned because of the experience of the Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Bill. First, the publicly announced time for the debate was changed on at least two, if not three, occasions, resulting in the list of speakers shrinking because people had made their arrangements and could not suddenly unscramble them. Secondly, it was very much a hybrid Bill—two Bills with almost nothing in common cobbled together. I hope that, if we are going to use this new system—and I am not opposed to it in principle—those who decide on the Bills will take a little greater care on which Bills they put to Grand Committee.
The only other point I make on this report is regarding the use of the proposed new system of voting. When we had the debate in October—my noble friend the Senior Deputy Speaker’s baptism of fire—he listened, and I want to thank him for that. I want to thank him particularly for the clause in this report which says that Tellers will be reinstated when we go to the pass-reader system. That subject is what upset many of us and it is essential—it was not a particular objection in principle to pass-readers but was rather about that. So I would like to thank my noble friend and the committee for listening to what was virtually the unanimous voice of the House. I also ask him if he can give us some idea of when he thinks there will be a proposal to move to this new system.
Viscount Stansgate (Lab)
My Lords, I would like to endorse the point made by the noble Lord about Tellers and ask a quick factual question of the Senior Deputy Speaker about recommendations 3(c) and (i). If a Member were, although it is not expected, to move the formal Second Reading in the Chamber and wished to speak, given that paragraph (i) says that debate
“in Grand Committee should count as part of second reading,”
would a Member in fact be allowed to take part both in the short debate that might not be expected in this Chamber and also in Grand Committee?
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, it is very seldom that we have an opportunity to discuss procedures in this House, and I want to raise a particular issue that arises from the three points in the report but goes wider than that.
Nearly half the Members of this House now reside either in London or nearby. It is a growing feeling among those of us who do not that they do not understand some of the difficulties that those of us who live outwith London have in relation to the business of the House, to keeping up with changes and starting times, and to keeping up with changes in the business and Motions before the House, which often, as the Government Chief Whip will confirm—and I know the problems that he has—take place at very short notice.
I wonder whether the people who live in and around London—who are able to have breakfast at home, wander in and participate, and then go home for dinner—understand some of the problems those of us who do not live in London have: that we have to find somewhere to stay, and pay for that; that we have to travel on a Monday and back on a Thursday, with all the problems that that involves, particularly during Covid. I wonder whether they understand the problems we have in relation to access to papers to be able to deal with these matters. I am raising the issue now with the very helpful chair of the Services Committee about being able to run off documents at home, which is a very expensive thing that we are expected to undertake and very difficult when we are not able just to wander in, as people who live in London can—at the weekend, even—to do these things.
The leader of the Liberal Democrats last week raised the issue of voting and got very short shrift from the Leader of the House on the problems that some noble Lords have had in participating in voting now that we have abandoned the ability to vote from home. I know that there are all sorts of arguments for and against that, but I wonder whether Members realise the problems that we have. I do not think people outside this House realise that, let alone Members living in London.
Lord Forsyth of Drumlean (Con)
My Lords, I do not want to detain the House. I just want to thank the Senior Deputy Speaker for making the amendment and to make one point about the use of the Moses Room and Grand Committee meetings. I am ashamed to say that, after probably more than 20 years in this House, I spoke in the Moses Room for the first time on the subject of the governance of this House. I was grateful that so many points were raised and I know my noble friend will be addressing them in due course.
I think it is quite ridiculous to schedule the debate on the Budget in the Moses Room. Although this House has limited influence in these matters, the Budget is a central part of the Government’s programme and this House is meant to give advice. So I hope we will not see important debates on committees or on the Budget being shunted next door, where I think they have limited exposure.
Baroness McIntosh of Pickering (Con)
My Lords, will the Senior Deputy Speaker consider the very appropriate plea from the noble Lord, Lord Grocott, for the greater use of the Grand Committee Room for Private Members’ Bills? I was extremely fortunate to have a private Member’s slot very high up on the ballot last year, but of course, because of the Covid constraints on the timetable, no Private Members’ Bills were taken. These Bills have been used as an extremely successful mechanism in the other place when the Government have wanted to see a minor change to the law and have used a Private Member’s Bill for that purpose.
I support the comments made by the noble Lord, Lord Foulkes, about those of us who have our main home outside London.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, I am most grateful to all noble Lords who have spoken. Some have perhaps used the opportunity to go a little wide of the report, but that is no matter because, in a sense, I would say very strongly, it provides an opportunity for ensuring that this House is contented and harmonious and works successfully.
The noble Lord, Lord Grocott, raised the point about the use of the Moses Room. There is actually nothing in the report that says that this applies only to government Bills; as I have said, it is clearly a matter for the usual channels and the House to agree. From that point of view, there is nothing in the report that says it is just for government Bills. As we know, all Private Members’ Bills go through journeys that involve the other place as well, and many Bills that have gone from this House have not being successful in their journey through the other place—but the points are noted.
The noble Lord, Lord Cormack, raised a point about time changes. I am afraid I did not know about them but, from my work with the usual channels and the Government Chief Whip, I do know that every attention is given to making these matters straightforward. If times were changed, I am sure that that was not with intent but from necessity. What is clearly important in what the committee sought to ensure in the choice of Bills, following the letter of the Leader and the Government Chief Whip, is that they should be less complex and controversial, and should have the agreement of the usual channels. So I think it is understood, in this proposal, that great care will be taken on that.
On Tellers, it was clear from what was—yes—my baptism of fire, that the House feels strongly about the probity and importance of Divisions when we are in the right position. We are meeting as a committee on 17 January, but I think it is fair to say that, in the current circumstances, we should not be returning to the Lobbies. However, we will obviously need preparatory work and consideration on these matters.
The noble Lord, Lord Foulkes, mentioned being outside London. In another life, I spent quite a lot of time supporting rural interests and interests beyond the metropolitan mindset—some people may say metropolitan “elite”. It is desperately important that this House is drawn from across the United Kingdom. That is one reason why the start time on a Monday has always been designed to enable Peers from all parts of the kingdom to assemble here. The point is that this is an assembly; it is where we gather and where we all have the privilege of being able to have this discourse. As I live in Suffolk—not as far away as the noble Lord—I have intense sympathy with him on the interests of Peers making their contribution while living outside London and its environs.
The noble Lord, Lord Forsyth, raised the use of the Moses Room. Again, it is clearly important that this is used in a proportionate manner. I am very conscious of that in the context of scheduling business, as I know is the Government Chief Whip, particularly in these times when many noble Lords want to make a contribution.
The noble Baroness, Lady McIntosh, also raised Private Members’ Bills. I have taken all these points on board but, so far as the committee’s fifth report is concerned, I commend it to the House.
Lord Grocott (Lab)
My Lords, before the noble Lord sits down, he threw me slightly by saying that this applies to Private Members’ Bills as well. Having reread the letter from the Leader of the House and the Government Chief Whip, I think I can be forgiven for not seeing that. The Senior Deputy Speaker is quite right that they do not specifically mention government Bills, but one could reasonably assume, in a letter from the Government Chief Whip and the Leader of the House, that in the front of their mind are government Bills. So if, as he says, from now on people presenting Private Members’ Bills, who normally have to negotiate with the Government Chief Whip about a suitable Friday when a Second Reading can be held—it is often a very long wait—will have this new procedure whereby the Second Reading can be held in the Moses Room, that should be clearly explained as an option to everyone who is successful in the ballot for Private Members’ Bills, and indeed to people who present Bills that are not necessarily in the top 20, or whatever it is. What he is suggesting is a new procedure to most Members and I urge the Procedure Committee to ensure that Members are fully aware of that option when they are successful in the ballot on Private Members’ Bills.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
I must reply by making it very clear that this procedure is for less complex and non-controversial pieces of legislation. That is why there is this safety valve for all of that.
Viscount Stansgate (Lab)
My Lords, forgive me. The point I was raising was whether a Member can speak at Second Reading in the Chamber and in the Moses Room subsequently, even though it would be counted as one general debate.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
I owe the noble Viscount an extreme apology: I was going through my list and omitted my answer—which is yes—because it was so short. The said Peer is able to participate in both.
Standing Orders (Public Business)
The Senior Deputy Speaker
That the standing orders relating to public business be amended as follows:
Standing Order 21 (Leave of Absence)
After paragraph (7) insert the following new paragraph:
“(7A) The House may refuse or end leave of absence on the application of the Commissioner for Standards or the Conduct Committee, where this is necessary either to enable the Commissioner to conduct an investigation under the Code of Conduct, or to enable the Conduct Committee to impose or recommend the imposition of a sanction on a member of the House.”
Charities Bill [HL]
(2 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Ashton of Hyde (Con)
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Charities Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the Charities Bill requires no legislative consent Motions. In relation to Wales, charity law is reserved to Her Majesty’s Government of the United Kingdom. In relation to Scotland and Northern Ireland, charity law is devolved to the Scottish Parliament and to the Northern Ireland Assembly.
Clause 41 sets out the territorial extent of the Bill. The Bill extends to England and Wales only, subject to certain exceptions. Those exceptions are Clause 24, Schedule 1 and paragraphs 12 and 46 of Schedule 2, which have a different application than the general application of the Bill set out in Clause 41(1). These differences are explained in the Bill and in the Explanatory Notes. Given the limited scope of the applicability of these parts of the Bill, no legislative consent Motions are required. I beg to move that the Bill be now read a third time.
Motion
Lord Parkinson of Whitley Bay (Con)
My Lords, in moving that the Bill do now pass, I want to take the opportunity to express some thanks, first to my noble friend Lady Barran, who so ably guided the Bill through its Second Reading and the beginning of the committee’s evidence sessions. Her dedication to and personal experience in the charity sector is evident, and I know that she was pleased to be the Minister to set this Bill on its way. I am grateful also to all Members of your Lordships’ House who have spoken on it. I draw attention especially to the noble and learned Lord, Lord Etherton, who chaired the Special Public Bill Committee which examined the Bill, and to the members of that committee, my noble friends Lord Bellingham, Lord Cruddas, Lady Fullbrook and Lord Sharpe of Epsom, the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baronesses, Lady Barker and Lady Goudie. I also pay particular tribute to my noble friend Lord Hodgson of Astley Abbotts, who inspired the Law Commission to take on this project in the first place. He has, as ever, eloquently and doggedly conveyed his expertise and experience in these debates. Although I am afraid that we did not agree on absolutely everything, I certainly appreciated the way in which he prosecuted his case and am grateful for his invaluable perspective on the Bill.
I thank all those behind the scenes, the staff in your Lordships’ House and colleagues from the Law Commission, the Charity Commission, Parliamentary Counsel and DCMS, for their work.
The passage of this Bill has demonstrated the passion and expertise of your Lordships’ House and its Members in relation to charities. It will make a great a difference to a number of charities, and I hope to see it on the statute book very soon.
Lord Etherton (CB)
This Bill will be warmly welcomed by the charity sector. As chair of the Special Public Bill Committee, I thank the Minister and, as he said, his predecessor, the noble Baroness, Lady Barran, for their membership of the committee and their engagement with it. I join the Minister in thanking the members of the committee, who had to consider some really quite difficult technical evidence, as well as those who gave written and oral evidence. Professor Hopkins and Daniel Robinson of the Law Commission were extremely helpful. Finally, and certainly not least, I know the committee would want me to thank expressly Alasdair Love, the clerk to the committee, who so ably supported us in so many ways.
Lord Hodgson of Astley Abbotts (Con)
My Lords, my noble friend was kind enough to mention my involvement. This is an excellent piece of legislation which will be of great benefit to the charity sector. Obviously, I regret that I was unable to persuade the Government of the importance of my amendment, but that particular recalcitrant attitude should not disguise the fact that my noble friend was extremely courteous and helpful in explaining the Government’s position. I am grateful to him for that, and I wish the Bill a speedy passage into law.
Baroness Barker (LD)
My Lords, I wish to add my name to the sentiments that have already been expressed. I particularly thank the many people, in different roles, who came together to bring this piece of legislation to our attention, after such a long time and a lot of work. This House prides itself on its detailed scrutiny of Bills, and this is the place in which a Bill such as this should have been given the attention that we gave it.
I regret that we did not manage to agree on the subject raised by the noble Lord, Lord Hodson of Astley Abbotts, which remains an outstanding piece of technical law and a very important point of charity law. It will have an impact on the Charity Commission, as the regulator of charities, to do its job. I do not imagine that that issue will come before Parliament for a very long time, but I hope that those who have followed our proceedings will not let it go.
Secondly, one other very small issue was drawn to our attention by one of our witnesses during our session: the operation by the Crown law officers and the Attorney-General of an alternative cy-près scheme. Legislation does not come much more obscure than that, but this is an issue that, on this occasion, we could not probe fully. I hope that that will happen when this goes to another place and, more importantly, that when the practitioners and people in the charity sector come to reflect on our work, as they will do in years to come, they will regard those two points as unfinished business. But, in the meantime, I thank everyone, including the Minister, for his patience with all of us—we lobbed some very difficult questions at him.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I echo the sentiments that have been expressed across the House. I particularly thank the noble and learned Lord, Lord Etherton, for chairing us so ably. I think that I am right in saying that all of us who participated in Committee had never done so for a Law Commission Bill before, so it was a learning experience for all of us. But the noble and learned Lord, Lord Etherton, is undoubtedly an expert—some would say a leading expert—in this field, and the whole House has benefited from his expertise.
From the experience of my wife, who works in the charitable sector, I know just how lengthy and wide the consultation has been on this Bill over many years. While there are some loose ends, as expressed by the noble Baroness, Lady Barker, this is nevertheless a piece of legislation that the whole House can be proud of. I hope that the impact of the Bill will remain in place for many years to come.
Lord Parkinson of Whitley Bay (Con)
I am grateful to all the noble Lords for their comments. As the noble Baroness, Lady Barker, said, charity law can be very complex—not just for legislators but for the charities and organisations that it affects, especially those that do not regularly have access to legal advice. There is a duty on legislators to make the law as accessible as possible, while probing the issues that we have. I agree with the noble and learned Lord, Lord Etherton, that the expert advisers who gave evidence to the committee have helped us to do that and that the Bill has been improved because of the work of the committee and your Lordships’ House.
The Bill leaves this House in very good shape. As I say, it will make a big difference to those who run charities and the many great causes that they support. So, with renewed thanks to all involved and repeating the noble and learned Lord’s thanks to the clerk of the Special Public Bill Committee, Alasdair Love, I beg to move that the Bill do now pass.
Advanced Research and Invention Agency Bill
Monday 10th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Advanced Research and Invention Agency Act 2022 View all Advanced Research and Invention Agency Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 85(a) Amendment for Third Reading - (16 Dec 2021)
Lord Callanan
Member’s explanatory statement
This amendment removes a reference to a paragraph that was removed at Report.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, Amendment 1 is minor and technical and is consequential to the amendment made on Report in the name of my noble friend Lady Noakes.
My noble friend’s amendment removed the power for the Secretary of State to determine a pension or gratuity for non-executive members. This government amendment is needed to remove a reference to that power, which no longer exists, in paragraph 7(4) of Schedule 1. This paragraph disapplies the power for the Secretary of State to determine a pension or gratuity for the Government Chief Scientific Adviser, who will sit as a non-executive member on ARIA’s board ex officio. The power is of course not relevant in this case due to the Chief Scientific Adviser’s existing employment and pension entitlement as a civil servant. As the original power no longer exists, I am sure that noble Lords will agree that this reference needs to be removed to tidy up the Bill before it returns to the Commons for consideration of the amendments made in this House.
Viscount Stansgate (Lab)
My Lords, is it in order to congratulate the noble Baroness, Lady Noakes, on her success in moving her amendment in Committee? I watched as it went through and I thought how pleasing it must be for anyone to get an amendment accepted by the Government.
Lord Callanan (Con)
My Lords, it is my great pleasure to thank all those who have supported the progress of this Bill. I first thank my Whip, my noble friend Lady Bloomfield, who is currently demonstrating just how good she is at multi-tasking because she is in Grand Committee supervising another piece of legislation going through. It is always a joy to work alongside her with her support, capability and good humour.
As we have debated this Bill, I am of course grateful to have witnessed the shared ambition across the House for our nation to cement its role as a science superpower and for recognition of the important role that additional funding for high-risk research can play within that, through the ARIA model. While this is a relatively short Bill, the debate has none the less been thorough, as is right and proper in this House—from the role of ARIA in the R&D landscape to the definition of gratuities. It has demonstrated once again the important function of this House.
To that end, I join the noble Viscount, Lord Stansgate, in thanking my noble friend Lady Noakes for her efforts in sharpening the governance arrangements set out in the Bill, and my other noble friends Lord Willetts, Lord Lansley and Lady Neville-Rolfe, among others, for contributing their considerable experience.
I thank, on the part of the Opposition, the noble Baroness, Lady Chapman, for her constructive challenge on many parts of the Bill. I think we worked well together, and I look forward to continuing to work with her on future Bills. I also pay tribute to the noble Lords, Lord Ravensdale, Lord Fox and Lord Clement-Jones, the noble Viscount, Lord Stansgate, and members of the Science and Technology Committee for their very thoughtful contributions. I particularly welcome the thoughtful debate we have had on, for instance, intellectual property and the importance of retaining its benefits. I thank all noble Lords who spoke on these important issues. I am sure that the noble Lord, Lord Browne of Ladyton, especially, will closely follow the words of the Science Minister as the Bill returns to the other place.
It would be remiss of me not to also thank, once again, the excellent team of officials who have been behind me on this Bill. As always, I am just the front guy, as it were. Their support has been invaluable and a tribute once again to the finest traditions of the Civil Service. I particularly single out my private secretary, Hannah Cowie, for her support; the Bill manager, Andrew Crawford, and his deputy, Salisa Kaur; and Katie Reardon, Alex Prior, Robert Magowan and Charles Norris for their work over the last 18 months—a considerable time—to take this Bill forward and, hopefully in the near future, get it on the statute book. I also thank the broader ARIA team and colleagues across government who are undertaking the programme of work to make it a brilliant and realistic success.
Finally, let me recognise the exemplary work of the parliamentary counsel in both drafting this Bill and supporting its progress at so many points during its passage so far, and, of course, the House authorities, parliamentary staff, clerks and doorkeepers. As I mentioned, this is a relatively short Bill, but I really do believe its potential impact is profound. I know I am not alone in this House in looking forward in anticipation to all that will come out of ARIA and the benefits it will create for the research community, businesses and the everyday lives of people across this country.
Lord Fox (LD)
My Lords, first I should apologise for not being here to participate in the Report stage of this Bill. My disappointment was alleviated by the knowledge that my colleague and noble friend Lord Clement-Jones would more than compensate for my absence. I thank him for that and for his assistance throughout consideration of the Bill, and my noble friends Lady Randerson and Lord Oates for their work. I also thank the Minister, the noble Baroness, Lady Bloomfield, and the departmental team that has seen this Bill through; and the noble Baroness, Lady Chapman, the Labour Party and their team for working with us and the Cross-Benchers in a collegiate way. This was an example of good scrutiny coming to the fore. Finally, a big thank you to Sarah Pughe in our office for her support.
We still do not really know what ARIA is. Until it is decided who is leading ARIA, we will not know what its purpose is or how it will interact with the rest of the research environment. During the debate the Minister undertook to keep us informed—while enshrining secrecy in the Bill, of course, at the same time. So, I hope he will be able to keep us well informed as this effort unfolds —indeed, perhaps in advance of things happening. Without wishing to rain on the parade, we should keep a sense of proportion about what this is. This primary legislation has put in place a research effort worth about £200 million to 300 million per year. Meanwhile, the UK’s participation in Horizon Europe has more or less evaporated. During the debate, there were many discussions about the effectiveness of UKRI. In accepting this Bill and moving forward with ARIA, we would be grateful if the Minister also addressed these two elephants in the room: the continued participation of the United Kingdom in Horizon Europe and making sure that UKRI is as effective as it really can be, in order to make a big difference to the research effort in this country.
Baroness Chapman of Darlington (Lab)
My Lords, we are pleased to see ARIA move to its next stage and we look forward to the inventions and innovations that will come from it. I was particularly pleased to see the amendment from my noble friend Lord Browne, which will secure the intellectual property that comes about as a result of investment by taxpayers via ARIA. I hope that Ministers in the other place see the benefit of it and feel able to support it. We will, of course, be listening very carefully to what is said about that.
As the Minister well knows, we are concerned by the rejection of the amendments on transparency and accountability. As the noble Lord, Lord Fox, rightly reminded us, the research environment has changed dramatically since our departure from the EU, and we would encourage Ministers to resolve their outstanding differences and make sure that Horizon participation is secured for the future.
However, for today, I would just like to thank the Minister and his team. He is correct in what he said about the nature of the discussions we had. This is my first Bill in this place and I have learned an awful lot and made some new friends, I think, through the process of the Bill, particularly my noble friend Lord Stansgate, and the noble Lords, Lord Morse, Lord Ravensdale, Lord Fox and Lord Clement-Jones—I have already mentioned my noble friend Lord Browne. I also thank the officers of the House and all other noble Lords who contributed. I should put on record, too, my thanks to Dan Stevens, our political and legislative adviser, who has been enormously helpful to me, as a new Member, in being prepared for the process of seeing through a Bill in this place. I thank all noble Lords who contributed.
Police, Crime, Sentencing and Courts Bill
Monday 10th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-V Fifth marshalled list for Report - (10 Jan 2022)
16:27 - Division on Amendment 90A - Ayes: 198 / Noes: 163 - Amendment 90A agreed.
17:59 - Division on Amendment 95A - Ayes: 215 / Noes: 177 - Amendment 95A agreed.
19:07 - Division on Amendment 97 - Ayes: 99 / Noes: 169 - Amendment 97 disagreed.
Lord German
“(8) A local authority may establish and maintain a secure 16 to 19 Academy.”Member’s explanatory statement
This amendment would enable local authorities to run secure 16 to 19 Academies, either alone or in consortia.
Lord German (LD)
My Lords, the purpose of Amendment 90A in my name is to put beyond any doubt that an application to run a secure school by a local authority or local authorities, either working as an entity or acting in a consortium with others, will be treated on its merit, on the quality of the provision it proposes and can provide. In other words, there will be a level playing field for applications of this kind as for those from other, non-local government bodies. This amendment brings local authorities into the tent. It simply allows them to compete alongside other non-local authority organisations in order that the best provision will prevail, from whichever quarter it comes.
Since the debate on this matter, there have been discussions between the Minister, myself and other noble Lords from around the House and it is now clear that there is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. I will return to this matter shortly, as it is fundamental to the rationale for this amendment.
I want to make it absolutely clear that we on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system. It is worth remembering two points from his 2016 report. First:
“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”
Secondly:
“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”
These two points reinforce the need for the highest quality provision possible.
Further to that second point in the Taylor point report, the absolute importance of integration was emphasised, not only of education but of a wide variety of services within the work of these schools—health, social care and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those of the duty of safeguarding and promoting the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.
What is clear is that the skills and abilities of the heads and staff of these secure schools are fundamental. They need the best, and only the best will do. That is why this amendment is so important, because it ensures that local authorities are not excluded from providing secure schools, simply because of their nomenclature as academies.
The letter from the noble Lord the Minister to my noble friend Lord Marks makes two fundamental points: first,
“it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements”
with the Government; but, secondly,
“it is the policy of the Government that … no academy in England is operated by a local authority.”
The key issue here, then, is the use of the words “secure academy” rather than “secure school”. It is not a matter of who would be the best provider offering the very best and highest quality of education and integrated services outlined in the Taylor review and accepted by government. It is worth recalling that, when the Taylor review was published, the Government in a Ministerial Statement two days before the publication—which is quite interesting—referred to the setting up of two secure schools, one in the north and one in the south, and used the words “secure schools”. It is only in recent months that the word “academy” has moved into the nomenclature used for what was initially designed to be secure schools and was recognised by the Government as being secure schools.
Local authorities certainly have expertise in the provision required, but this amendment does not seek to favour them. It simply says that if they can produce the best provision needed, they should do the job. In doing so, they would have to follow all the frameworks set out by government, for example, on the devolution of decision making to the head, staff and governors. There would be no difference in the tender requirements, but these secure academies require the very best. To exclude a group of well-placed potential providers is a mistake.
As the noble Lord the Minister says in his letter to my noble friend Lord Marks, it is not a matter of the law but of the Government’s policy. That is why this amendment puts the matter beyond doubt. I and, I am sure, all noble Lords here will want the very best provision, from wherever it comes. I am not arguing that local authorities should win these bids, merely that they are given the chance to try. This legislation should provide the certainty that those who may be able to provide the best will not be left out. That is why I believe this amendment is important to put beyond doubt that all will be available and everyone can make a bid to run these services. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I start by reminding the House that I sit as a magistrate in youth and family courts and, as such, send youths to secure accommodation for welfare reasons and as a result of offences they may have been convicted of in the youth court. To make it clear, the Labour Party supports Amendment 90A, which the noble Lord, Lord German, has just spoken to. My Amendments 90B to 90F look at a different aspect of secure accommodation.
The amendments in my name seek to address national shortage in secure accommodation by placing a duty on local authorities to assess the local need and create a strategy to deal with that need. In Committee, Peers from across the House highlighted the significant lack of secure beds in certain areas that leaves children being dispersed across the country, sent to unsuitable establishments or unnecessarily remanded in custody. The Government responded by saying that they are taking steps to support local authorities to maintain existing capacity and to expand welfare provision in secure children’s homes.
There are currently no secure children’s homes in London, with London children being placed in justice and welfare placements in secure accommodation an average 124 miles from home. This is disruptive for the children, their families and the services supporting them. There are other significant geographical gaps across the country. Currently there are only 15 secure children’s homes in England and Wales. This amendment places a statutory duty—a requirement—on relevant local authorities to address this issue.
Following the Government’s response to the amendment in Committee, the Mayor of London’s office stated that the reality of the £259 million referred to by the noble Lord, Lord Wolfson, is that it will take some time to translate this into available secure beds. This is especially true given that there is no indication of how that funding will be apportioned across the country to address the geographical gaps to which I have referred. There is also no commitment to ensuring that both welfare and justice placements are provided for within this funding. This is also a gap in the answer given by the noble Lord. Therefore, the additional funding does not remove the need for relevant local authorities to assess the need for secure accommodation and to develop a strategy for any shortfall.
In conclusion, I will repeat a statement given by Lord Justice Baker. This is the ruling on an appeal brought in July 2021 by Just for Kids Law against Waltham Forest Borough Council which successfully argued that the failure by local authorities in London to provide appropriate alternative accommodation for children was unlawful. He said:
“The absence of sufficient resources in such cases means that local authorities are frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm. The provision of such resources is, of course, expensive but the long-term costs of failing to make provision are invariably much greater. This is a problem which needs urgent attention by those responsible for the provision of resources in this area.”
If the noble Lord, Lord German, chooses to put his amendment to a vote, we shall support it. Nevertheless, I have raised other issues which I hope the Minister will respond to in his reply to this group of amendments.
Lord Carlile of Berriew (CB)
My Lords, the aim of this exercise is to ensure that children who enter custody leave it better educated, better able to become part of normal working society and better able to function in a family environment. When Charlie Taylor produced his advice, which has already been mentioned, on the education of children in custody, his aims were exactly those: to ensure that the quality of education in custodial institutions, which currently is extremely variable, from the excellent to the terrible, should reach a good standard, comparable with that provided by decent schools around the country.
There is an issue about numbers. I would not like it to be taken that every local authority will be required to provide an educational provision for those children who come from that local authority. I know that is not what the noble Lord, Lord Ponsonby, with all his knowledge of this issue, is aiming at. There are well under 1,000 children in custody—significantly fewer than there used to be—which, after all, is the roll of a typical London comprehensive school as we speak. It would not be in the public interest to have a large number of academies for children in custody around the country because it would not be possible to supply the quality of education. However, as Charlie Taylor emphasised, we need the balance between having good schools or academies—whatever one calls them—for children in custody and local authority provision of the kind envisioned by the noble Lord, Lord Ponsonby, which ensures that they are kept in touch with their communities and their families and where they will probably go back to live after they leave custody.
It seems to me that, if all that is right, it is beyond argument that local authorities should be able to participate in this process without hindrance and establish educational institutions for those in custody, and that there should be as few obstacles in their way as possible. Once that is achieved, they will have to compete with everyone else who is in the area—that is perfectly sensible—but it would be wrong, for policy reasons that are, in my view, poorly conceived, to obstruct a legitimate role for local authorities.
Baroness Blower (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Carlile of Berriew. As some noble Lords will know, I spoke on issues relevant to this amendment at an earlier stage of the Bill.
In quoting the Taylor review, the noble Lord, Lord German, made the case for his Amendment 90A. It would be singularly inappropriate—I think this was the point made by the noble Lord, Lord Carlile—to debar all local authorities from setting up appropriate provision simply because of the use of the word “academy”. This is wrapped up with other aspects of educational policy. If the local authority is capable of providing what would manifestly be the best institution and provision for this group of young people, who need absolutely the best quality of education that can be afforded to them, it should do so. I take the view that the provision in Amendment 90A should categorically be in the Bill to ensure that we do not debar any local authority from engaging in the process to set up an institution. As has already been said, this does not require that local authorities should do it but it does not debar them; debarring them would be unreasonable.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this group of amendments covers Part 9 of the Bill. I will cover the group in two parts, if I may.
Amendment 90A in the name of the noble Lord, Lord German, would allow local authorities to establish and maintain secure academies either alone or in consortia. The noble Lord kindly mentioned the sustained engagement that he has had with me and others on this matter; in turn, I acknowledge my gratitude to him for his time and commitment. As he mentioned, I wrote to him and the noble Lord, Lord Marks, outlining that, in our view, it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements directly with the Secretary of State, and that this is not prevented by the Academies Act. Therefore, as I set out in that letter, there is no legal bar to what the noble Lord wants to happen. I understand that, as he said, he wants to put the matter “beyond any doubt”, but I have explained in writing that there is no legal doubt on this point at all; indeed, I think I heard him accept this afternoon that it is “clear” there is no legal bar. I therefore say to him and the noble Baroness, Lady Blower, that there is no issue of being debarred here. I suggest that the amendment is therefore unnecessary.
I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision. We of course recognise, as the noble Lord, Lord Carlile of Berriew, noted, that local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here. I therefore suggest that the amendment must necessarily be unnecessary.
I now turn to Amendments 90B to 90F, in the name of the noble Lord, Lord Ponsonby of Shulbrede. Local authorities have a duty, under the Children Act 1989, to ensure sufficient, appropriate accommodation for all the children they look after and to ensure sufficient children’s homes for other children whose welfare requires it, whether or not they are looked-after children. I recognise that some local authorities have sometimes found it difficult to access the most appropriate accommodation, particularly for children with the most complex needs. It is right to say, both from the judgment of Lord Justice Baker, which was mentioned, and indeed from other judgments, that some of these children have extremely challenging and very complex needs. It is also the case that, sometimes, children are placed in locations away from home when they may be better served by a placement in their local area if one were available. We are looking carefully at that, not only in my department but in others as well.
We are taking significant steps to support local authorities to fulfil their statutory duty. We have started a programme of work this year to support local authorities to maintain existing capacity and to expand provision in secure children’s homes to ensure that children can live closer to home and in provision that best meets their needs. In the spending review we announced £259 million to continue this programme to maintain and expand capacity in both secure and open residential children’s homes. We acknowledge, as the noble Lord, Lord Ponsonby, said, that it may take—I will use the same phrase—some time to see all the benefits of that capital investment, particularly when you are talking about new builds, but it is the case that the capital programme will also result in increased capacity in the secure children’s home estate in the shorter term as we seek to create more beds through investment in a range of projects, including extensions of current buildings, refurbishments and rebuilds. I know that in the judgment referred to by the noble Lord, Lord Justice Baker used the phrase “urgent attention”, and that is what we are giving this problem.
Ofsted has also taken steps to support local authorities in this area. It has an amended process to make it easier for local authorities or other providers to apply for registration of children’s homes in emergency situations. It is also now easier to open and run a single-bed children’s home, which can be one of the most commonly needed types of accommodation when the child has very complex needs. It can be almost impossible, sometimes, to have more than one child in that location. Ofsted has now published guidance on these changes, and I hope that will help as well.
Before I sit down, I should also remind the House of two other relevant pieces of work ongoing in this area. First, the independent review of children’s social care, which commenced in March last year, is looking at this whole area in a fundamental way. Secondly, also in March last year, the Competition and Markets Authority launched a market study examining the lack of availability and increasing costs in children’s social care provision, including children’s homes and fostering. It has proposed a number of changes, of which I will not go into detail now, but they are important. We will look at the full reports when they come out. I expect both of those pieces of work to be serious and substantial reports.
I recognise the aims of all noble Lords who have supported these amendments; we all share the same aims here, but I suggest that we have existing statutory requirements and significant, wide-ranging and independent reviews under way, looking at the whole care system, alongside that CMA market study. For those reasons, I hope the noble Lord, Lord German, will withdraw his amendment and the noble Lord, Lord Ponsonby of Shulbrede, will not press his. I urge them to do so.
Lord German (LD)
My Lords, I am deeply grateful to all who have contributed and to the Minister, who has not been able to go beyond the text of the letter that he sent to my noble friend Lord Marks. Although I understand that, it just reinforces the position that I outlined at the beginning.
To reiterate the point made by the noble Lord, Lord Carlile of Berriew, we are seeking the best, and to not leave out a potential bidder who could be one of the best is all that this amendment is about. It is simply to make sure beyond doubt. We understand that there is a legal route through this. I did not read out the exact words that the Minister repeated, but there is a route through—although he does say that it would place burdens on local authorities. Interestingly, and moreover, he said earlier that it also conflicts with the policy of academies.
The one thing the Minister did say, both in replying and in his letter, was that they will keep this issue under review. The problem with keeping something under review is that the process will already have started, and keeping it under review does not mean that there will necessarily be any changes or any scrutiny in this House.
The noble Lord said that there are two routes: the academy route, which local authorities will be excluded from, and secure family accommodation, which they want to encourage local government to do. Charlie Taylor’s review and report seek integration, not silos. It would be sensible to make sure that, at this point, there is absolutely no doubt. For the simple reason that we have to be able to search for the best and get the best, this amendment should be part of the Bill and not part of some future discussion—which may or may not produce a sensible outcome, as far as I am concerned. I am therefore minded to seek the view of the House on this matter.
Lord Paddick
Member’s explanatory statement
This amendment would raise the threshold for the standard of proof required to impose an SVRO, from a civil standard (the balance of probabilities) to the criminal standard (beyond reasonable doubt).
Lord Paddick (LD)
My Lords, I rise to move Amendment 90G in my name, and to speak to some of the other amendments in the group—but, with the leave of the House, I shall not speak to all 23 of them. We now come to what the Government optimistically call “serious violence reduction orders”. These would allow the police to stop and search people without any suspicion that those targeted have anything on them that they should not legally have in their possession.
This is yet another form of stop and search without suspicion, which is notorious for three things. First, understandably, it is notoriously ineffective, even compared with stop and search based on suspicion. Secondly, it is, notoriously, disproportionately focused on black people, even compared with stop and search based on suspicion; and, as a consequence, it is notorious for the damage it causes to the relationship between the police and the communities they are supposed to help.
The Minister cited in Committee the fact that young black people are 24 times more likely to be victims of homicide than young white people. That is exactly why the police need to work together with those communities to build trust and confidence, and to demonstrate that they are on their side, and not using powers disproportionately against them, as these new powers, by the Government’s own admission, will continue to do.
It is not just me saying that disproportionate use of powers against certain communities—the very communities that need to work together with the police to tackle knife crime—is “undermining police legitimacy”. Those are the words of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. Serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities that the police need to co-operate with them to identify the perpetrators.
I was a sergeant in Brixton at the time of the Brixton riots in 1981; I was a chief inspector in Brixton 10 years later; and I was then the police commander in charge of Brixton 20 years later in 2001. In my professional judgment, serious violence reduction orders—in fact, any form of suspicionless stop and search—are counterproductive. That is why Amendment 101 would repeal Section 60 of the Criminal Justice and Public Order Act 1994. Only one in 100 Section 60 searches results in a weapon being found, and black people are 18 times more likely to be targeted by the police than white people—compared with nine times in the case of stop and search, where the police must justify their decision. I remind the House of what I said in Committee: Section 60 is not used at all in Northern Ireland for fear of the damage it would cause to police-community relations. It should not be used anywhere in the UK and should be repealed.
Amendments 90G and 90M follow the well-worn path that we on these Benches have consistently trodden, and where previous Governments have agreed with us. They realise the injustice, as we do, of allowing the breach of an order made on the balance of probabilities to be a criminal offence. When it was realised that ASBOs—the first of this kind of civil order with criminal sanctions—led to large numbers of people being criminalised, the then-Government changed course and replaced them with wholly civil orders and sanctions. The Minister in Committee cynically cited precedent for this approach, but it is an approach that we on these Benches have opposed every single time it has been proposed. Amendment 91C would also apply the higher standard of proof—beyond reasonable doubt—to renewals of SVROs. Amendment 90H, which I have signed, would disallow an SVRO being applied on the grounds that someone simply had a knife on them when an offence was committed.
The Minister’s quite extraordinary letter of 6 January tragically fails to answer my criticism, made in Committee, that someone who was carrying a knife lawfully and who did not use the knife in the commission of any offence could still be made the subject of an SVRO. The letter says:
“Whilst you are correct … this could include… where a person is caught unlawfully carrying a bladed article or offensive weapon.”
If they are caught unlawfully in possession of a bladed article or offensive weapon, they can be charged with that offence and then be made subject to an SVRO. Referring to the examples I gave—of a chef, an electrician or a Sikh in lawful possession of a knife—the letter goes on:
“In the examples outlined in the debate it would be difficult to see how a court might consider that an SVRO is necessary to protect the public.”
Is the Minster not aware of the Metropolitan Police gang matrix, where even innocent bystanders at a shooting were characterised as gang members? Any evidence, whether normally admissible in a criminal court or not—hearsay, gossip or rumour—can be given in support of an SVRO.
As the Minister has recently admitted, public trust in the police has been seriously undermined and distrust is even worse among the communities most seriously affected by knife crime. Allowing the police free rein to say whatever they want in support of an SVRO will make a rapidly deteriorating crisis of confidence in the police service even worse. Hence, Amendments 90N, 90P and 90Q would restore the standard of evidence used in the granting of SVROs to that which would have been admissible in the proceedings for the substantive offence. We also strongly support Amendments 90J, 90K and 90L but I will leave others to speak to them.
We have tabled Amendment 91A for the reasons that my noble friend Lord Marks of Henley-on-Thames gave in Committee. There needs to be a reasonable excuse defence for wrongly telling a police officer that they were not subject to an SVRO—something that the police officer could immediately check in any event. Amendment 91B removes the new offence of obstructing a constable in the execution of his duty in relation to SVROs as this is already covered by existing legislation. Amendment 91D limits the renewal of SVROs to a maximum of four years, allowing those subject to them to move on with their lives rather than being targeted and harassed by the police indefinitely, even if they commit no further offences.
Amendments 95A and 95B, to which I have added my name, would prevent SVROs being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to its rollout. We need to be sure that these orders will not be counterproductive. Amendment 95C would strengthen the pilot; I am sure that the noble Baroness, Lady Meacher, will explain this further.
If the Government insist on proceeding with this dreadful measure, they should at least limit the damage until they are sure that it will not make matters worse. We support all the amendments in this group.
Baroness Meacher (CB)
My Lords, I will speak to Amendments 90H and 90J, as well as 95A, 95B and 95C, but, before going into the arguments for those amendments, I express my strong support for Amendments 90G and, indeed, all the amendments in this group. I have such considerable concerns about the detrimental impact of these serious violence reduction orders that I believe that any way in which we can limit their detrimental consequence should be supported.
I begin by addressing why I hope the Government will make adjustments to the Bill in view of those considerable concerns—expressed not just by those of us in this House but by many organisations in the community, including Amnesty International—about the severe consequences of SVROs for so many innocent young people and the need to restrict these provisions appropriately.
As Ministers know, SVROs would expand stop and search powers to enable the police to stop and search someone whenever they are in a public place, without any suspicion of current wrongdoing, simply on the basis of a past conviction that may or may not be a knife offence. The purpose of Amendments 90H and 90J is to put right this apparently unintended wrong.
The Minister repeatedly stated in Committee that
“at the point at which … someone is issued with an SVRO, they will have been convicted by the court of a knife or offensive weapon offence”.—[Official Report, 17/11/21; cols. 310-311.]
However, the legislation as it stands makes it clear that an SVRO can be issued to individuals who have not been convicted of a knife or offensive weapon offence. New Clause 324A(3) clearly allows for an SVRO to be issued if the offender had
“a bladed article or offensive weapon with them”
or, under subsection (4)—this is in many ways much worse—if the offender
“knew or ought to have known”
that someone else had a knife. This could include someone convicted of shoplifting who happened to have a penknife in their pocket. It could also—this is really important, and I hope that the Minister will respond—include people in abusive and coercive relationships, who may have known or, according to the Bill, should have known that their abuser had a knife.
Will the Minister say whether she believes that individuals involved in these ways should be regarded as having committed a knife crime and therefore liable to have an SVRO imposed? I feel quite certain—because I know the Minister and know that she has great integrity—that she will not want these people to find themselves caught up with an SVRO.
There are many reasons to amend the Bill as proposed in Amendments 90H and 90J. First, as Agenda has said, the proposed terms of an SVRO render invisible the impact of coercion in relationships experienced by many young women drawn into the criminal justice system or at risk of criminal exploitation. Ministers need to take account of a study by Metropolitan University and JENGbA which examined 109 joint enterprise cases involving women and girls, the majority of whom had convictions for serious violent offences. The study found that none of the women involved had used a deadly weapon and in 90% of cases they did not engage in violence at all. In half the cases, the women were not even present at the scene. Perhaps the Minister can comment on this study and its implications for Amendments 90H and 90J. We are simply asking the Government to adjust the Bill to bring it into line with the Conservative Party manifesto, which makes clear the aim to make
“it easier for officers to stop and search those convicted of knife crime.”
The removal of new Clause 342A (3)(b) and (4) would achieve this alignment, and I hope the Government may be willing to do that. As Minister knows, the College of Policing has expressed its concerns that the use of stop and search without an intelligence-led approach is unlikely to reduce crime.
In addition, there is no evidence to suggest that SVROs will be effective in reducing knife crime. This point brings me on to the other amendments I have tabled in this group—Amendments 95A, 95B and 95C— which focus on the need for the pilot of SVROs to be comprehensive and meaningful. Amendments 95A and 95B require a vote by both Houses. It is crucial to have this democratic control before these SVROs are introduced. This must happen under these amendments before SVROs can be commenced.
Amendment 95C strengthens the pilot to ensure that key issues are examined. A key reason why these amendments are vital is the experience of a pilot into the relaxation of the best use of stop and search safeguards. The rollout of these changes was announced by the May Government prior to the publication of the evidence arising from the pilot. The Government were forced into a U-turn by a legal action, but they have continued to refuse to publish the evidence on the grounds that they need a safe place in which to discuss changes. Are we going to be up against this sort of argument in this context? Amendments 95A and 95B would ensure publication of the evidence and parliamentary scrutiny before SVROs could be rolled out.
We know that the proposed new measures pose significant human rights impacts, as the noble Lord, Lord Paddick, pointed out. Black people are 18 times more likely to be stopped and searched than white people. They do not commit these crimes 18 times more than white people. Also, only 4% of stops find a weapon. The pilot will need to show that SVROs meet their stated aims of breaking the cycle of offending and protecting our communities from harm. The pilot also needs to analyse the effect upon others who will be severely affected by SVROs as the Bill stands—for example, exploited women. It is for them, in particular, that SVROs must not be applicable to people who knew or ought to have known that someone else had a knife. I am sure the Government do not wish to bring these women into the criminal justice system, as others have already said.
Amendments 95A and 95B are hugely important because they ensure that SVROs can be introduced only if Parliament is satisfied on the basis of the evidence from the pilot that they will reduce serious violent crime and that the consequences for the human rights of individuals and communities are proportionate and justified.
Baroness Jones of Moulsecoomb (GP)
As a Green, I am very concerned about the Government undermining the doctrine that police on these islands gain their authority from the consent of the governed. Overuse of stop and search powers has deeply undermined community consent in many areas of the country. We worry all the time about the police being constantly distrusted. That is no wonder, especially with a measure such as this. There are racial and socioeconomic disparities in who gets targeted by the police—we cannot avoid that. These government severe violence reduction orders will create, as the noble Lord, Lord Paddick, has said, a new suspicionless stop and search power, and once a person is issued with one of these orders they could face unlimited interference from police officers. We have to ask: is this the sort of measure that will bring those offenders back into society or will it turn them further away?
The Greens will support any amendments that improve this system of serious violence reduction orders, in particular Amendments 95B or 95A—whichever amendment tabled by the noble Baroness, Lady Meacher, comes up for a vote. That the reports from a pilot project are approved by Parliament before these orders can be deployed more broadly seems to me to be common sense. Why on earth would they be brought in before they have been measured? It is essential that the Government prove the efficacy of these measures and demonstrate that they are not being used in a way that is racially or otherwise discriminatory.
I particularly support Amendment 101 from the noble Lord, Lord Paddick, which would repeal the existing powers of suspicionless stop and search. There should not be a power for the police to search without reasonable suspicion.
The Lord Bishop of Manchester
My Lords, I support Amendments 90H, 90J, 95A, 95B and 95C, to which I have added my name. I also signal my support for other amendments in this group which also seek to control more tightly how serious violence reduction orders will operate. I draw your Lordships’ attention to my work on policing ethics, both for Greater Manchester Police and for the National Police Chiefs’ Council, as set out in the register of interests.
As the noble Baroness, Lady Meacher, has indicated, Amendment 90H seeks to ensure that an SVRO can be applied only when a bladed article or offensive weapon is used to commit an offence, not simply when such an item happens to be present and in the possession of the defendant. As the noble Lord, Lord Paddick, has indicated, as presently drafted, the Bill requires no substantive link between the weapon and the offence. An individual could, for example, commit a road traffic offence while driving home from a church picnic, with their used cutlery on the passenger seat next to them, and the prosecution could ask for an SVRO.
I can see that subsection (5) of the proposed new chapter is intended to mitigate that by requiring the court to consider that imposition of the order is necessary to protect the public or the defendant from possible future offences involving such weapons. However, I do not believe it adequately achieves that objective. Asking a court to conject what might happen in the future can all too easily invite decisions taken on discriminatory or flimsy grounds, especially as no court would wish to face public criticism for having failed to apply an SVRO should later violence occur. To legislate for future conjecture requires a robust link to what has already happened. Subsection (3)(a) gives that; it requires that the weapon was used by the defendant in committing the offence in question. Deleting subsection (3)(b), as this amendment seeks to do, would ensure that any order is based on genuine and evidenced risk. To put it bluntly, it would pass my church picnic test.
Amendment 90J, if I may turn to that, seeks to more closely tie the order to the offence by limiting it to the actual person who used or had possession of the weapon, not some putative third party who
“knew or ought to have known”
that they had it. The de facto joint enterprise element in the current drafting of this clause widens the net substantially for who can be affected, and includes people not convicted of knife crime. As the noble Baroness, Lady Meacher, has just said, this is likely to disproportionately affect women and girls, who may well know or suspect that a partner or family member may be carrying a weapon but are far too vulnerable to be able to extricate themselves from a situation where violence involving such weapons may be committed by others.
I understand that the intention may be to provide such vulnerable adults with an excuse to stay away from both people and situations with which violence may be associated, but when I try to put myself in the position of such a person, I cannot really imagine saying to my partner or brother: “Oh, I must not be near you when you have a knife because I might get an SVRO against me.” I think these people are far too vulnerable. I hope I have persuaded your Lordships that Amendment 90J will address this deficit.
Finally, on Amendment 90J, apart from it being grossly unfair by ignoring the impact on vulnerable people, subsection (4) appears to be unworkable. How will the court determine if someone “ought to have known” that some other person had a knife? The amendments in the name of the noble Baroness, Lady Armstrong, tease out this point specifically. I will leave others to speak to them at greater length, but if our own Amendment 90J does not win your Lordships’ support, I would hope that her amendments are more persuasive.
I now turn to Amendments 95A, 95B and 95C on the pilot scheme. In order to understand how SVROs operate in practice, these are entirely welcome. SVROs present a major innovation. There are significant risks of dangers from unexpected consequences—dangers that may outweigh any good that SVROs achieve. If we are to roll them out across the country, we need to have confidence that they are doing the job intended and making things better and not worse. For all the eloquence of our arguments in this House, there is nothing quite like having real, practical experience on the ground to draw on if we are going to get things right. These three amendments, taken together, simply seek to strengthen the pilot; to make it a genuine gathering of all the most relevant evidence, and one that will feed into a proper decision-making process here in Parliament, ahead of SVROs being rolled out across the nation.
In my early days as Bishop of Manchester, we had an idea of how we might make better and more locally informed decisions on where we deployed our vicars. We set up a two-year pilot across about a fifth of our dioceses. Towards the end of that period, we commissioned an independent evaluation by outside experts. We learned a huge amount from the exercise, and, in consequence, we never rolled out the substantive project. We did something different; we did something better. A pilot has to have the capacity to substantially implement the eventual shape of whatever is the final product, otherwise it is simply window dressing.
It is clear from speeches already made here today that there is considerable uncertainty about SVROs. In particular, noble Lords have drawn attention to the danger that they become associated with disproportionality and hence diminish confidence in policing and the courts. None of us wants that. We noted the risk that, rather than prevent criminalisation, they may draw more vulnerable people—especially young women—into the criminal justice system. We have remarked that extensive use of stop and search powers, especially in the absence of specific evidence of intention to offend, has over and again proved counterproductive. These last three amendments cover both the process and the content of the pilot evaluation. They will make for much better decisions on how and when, and perhaps most crucially if, SVROs are rolled out across the nation. I hope the Minister will be minded to accept them or to meet us to find an agreed way forward.
Baroness Hamwee (LD)
My Lords, I wonder whether I could ask the Minister a question about her amendments to Clause 141. This takes forward to one point of detail the comments made by other noble Lords about targeting particular groups of possible offenders. Amendments 92 and 93 would extend the guidance from the exercise of functions by the police to, as in proposed new subsection 1A(b),
“guidance about identifying offenders in respect of whom it may be appropriate for … serious violence reduction orders to be made”.
To me, this reads very much like profiling. Can the Minister tell the House whether “identifying offenders” is about identifying particular individuals or a cohort, class or demographic in respect of whom the Government may see SVROs as appropriate?
The Lord Bishop of Gloucester
My Lords, I rise to support in particular Amendments 90H, 90J, 90K and 90L. As has been said, they are critical to ensuring that more vulnerable women are not drawn into the criminal justice system through the de facto joint enterprise element of SVROs. Probably like other noble Lords, I was shocked to read the briefing from Agenda, which states that analysis of
“109 joint enterprise cases involving women and girls”
shows that
“there was not a single case in which women and girls had handled a weapon; in 90% of cases they engaged in no violence at all; and in half of the cases they were not even present at the scene of the crime.”
As we have heard, SVROs will mean that women can be given an order based on a single judgment that, on the balance of probability, they “ought to have known” that someone in their company was in possession of a knife. That key phrase, “ought to have known”, is really troubling. Will the Minister consider how this fits in with wider policy, including the female offenders strategy, to limit the number of women serving short sentences and prevent reoffending?
We have a duty to limit unintended consequences. These amendments would do just that.
Lord Sentamu (CB)
My Lords, I rise to support Amendments 90G, 90H and 90J, but I will concentrate on Amendment 90G. I declare an interest: when I was a vicar in Tulse Hill, south London—I was there for 14 years—I was stopped and searched a number of times. I asked the police why, particularly when I did not have my dog collar on because I had gone to B&Q to get some paint to decorate our house. They said that they wanted to make sure that the tins of paint had not been stolen. I had to produce a receipt. I was then let go, but there were other occasions; it was not just a one-off.
I then became the Bishop of Stepney. I had been there for only about 18 months when, one evening, having taken my wife to a selection conference, on my way back, at about 10 pm, on that wonderful hill in London, I was stopped and searched. The man wanted me to open my boot, which I did. As I stood up, he suddenly saw my dog collar and purple shirt and said, “Whoops”.
I was an adviser to the Stephen Lawrence inquiry. By the way, it was not the Macpherson inquiry, as people tend to call it. If you look at the book, you will see that it was the Stephen Lawrence inquiry, chaired by Sir William Macpherson of Cluny, who died last year.
Lord Moylan (Con)
My Lords, I generally support this important legislation, but I expressed at Second Reading and again in Committee my sense of unease about the whole concept of serious violence reduction orders but also about the detail of their implementation. It is clear that my arguments have not borne the fruit I would hope to see, because I have read—since she kindly copied it to me—my noble friend’s letter to the noble Lord, Lord Paddick, in which the Government made it clear that they did not see any scope for budging either on the principle or on the detail of the implementation of these provisions. So, rather than engage in a discussion across a broad front, I shall simply focus my few remarks on Amendments 90K and 90L in the name of the noble Baroness, Lady Armstrong of Hill Top, which deal with what might be the most egregious question on this subject, that of “ought to know” or “ought to have known”, depending on how it is phrased in the Bill.
The Government are proposing that people should be subject to these orders, which are serious constraints on their liberties and which have potentially severe reputational consequences. In some cases, these may be merited, but in the case of “ought to have known” it is extremely difficult to accept that the burden on those who receive these orders is merited, on the basis not of their carrying a knife, not even that they knew a knife was being carried but that they ought to have known a knife was being carried.
There are three essential problems. The first is meaning. The noble and right reverend Lord, Lord Sentamu, pointed to the difficulties that arise from the variability of language. The expression “ought to have known” is one that we can easily use in different ways in ordinary, natural language. But we are dealing here with language that ought to be drafted in a precise fashion and can be applied in a predictable way in a court of law, because we want our laws to be predictable. We want people to know that, if they do this or that, they will be in trouble, but if they do not do so, then that is okay. I do not know what “ought to have known” means in a legal sense.
The second problem is evidence. Even if you had a clear understanding of what the words “ought to have known” mean, how is that to be established in a court of law when, as I have said before to your Lordships, it is difficult enough to establish in a court of law what somebody did or did not know, let alone what they ought to have known. There is an evidential question here.
The third problem arises from the first two. It will be a decision of this Parliament to adopt this language which throws a huge interpretational burden on the courts. We do not know how the courts are going to interpret or implement this language. I do not want to draw unfair parallels, but when we discussed in Committee and on Report the question of prisoners serving indeterminate sentences for public protection, it was clear that the Home Secretary of the day, the noble Lord, Lord Blunkett, did not expect the provision to be applied by the courts with the liberality that the judges felt obliged to apply because of how it had been drafted. I hope I have explained that correctly. In other words, the noble Lord, Lord Blunkett, thought it would be applied only occasionally, but when the judges read what they were expected to do, they felt obliged to apply it more liberally to far more cases, which had never been his intention when he had proposed it. We are potentially in similar circumstances here. We simply have no idea, if we agree this language, how it is going to be applied by the courts in actual cases: with what breadth or how frequently it will be applied to people who were not carrying a knife and did not know that a knife was being carried but it is felt on some basis that they ought to have known.
I am not trying to detract from the other amendments in this group by focusing my remarks on this narrow point, which has been addressed by other noble Lords. I am focusing on these two amendments because I would hope that my noble friend might, after reflecting on it, be willing to come forward at Third Reading with something that rethought this approach. Or at the very least, if it did not rethink it, she would say that she was going to add words or guidance or some other supplement to the Bill which would make the circumstances in which this applied very specific such that we had that level of certainty that we did not impose this burden on the courts. We should have certainty in law but also certainty in our own minds as to how frequently and commonly this penalty would be applied in the event of “ought to have known” cases.
Lord Hogan-Howe (CB)
My Lords, I rise to support the general thrust of what the Government are trying to achieve, although I have some sympathy for one or two points that have been raised by previous speakers. I do not speak as a zealot for stop and search. It has dangers, which I hope I can persuade noble Lords I have taken seriously in the past.
The Government seem to be trying to change the culture of people carrying knives, either in public places or sometimes in private. Far too many people have been carrying knives and clearly still are, leading to minor arguments ending up in fatal events. We know that people who are repeat offenders disproportionately account for a disproportionate amount of crime. As few as 10% of offenders, on some occasions, can account for two-thirds of the crime. That applies to victims as well as to the places that they meet, which are repeat locations. Legislation over the years has tried to do something about that and, I think, has generally been well intended.
I agree with many of the things that the noble and right reverend Lord, Lord Sentamu, has said. He had a worrying experience, but a lot of it has been London based. For historical reasons, there have been three different types of legislation which have caused real problems in this city, but occasionally in others. The sus law of the 1960s allowed unqualified stop and search. That caused a great many problems and was got rid of.
Then along came Section 44 of the Terrorism Act 2000. Section 44 was precisely intended for locations that were likely to be attacked by terrorists—places such as Parliament. It was intended to draw a line around places and, if someone went into this area, they could be searched without cause. In fact, the Metropolitan Police applied that throughout London. Every one of the 32 boroughs was covered by that piece of legislation, so people who live in London have had that experience of stop and search without cause for tens of years. Whether it be people who are now being stopped and searched, or their parents or grandparents, they have that experience. That is the thing that I am afraid has disproportionately affected how they feel about the legislation.
The latest version is Section 60. The noble Lord, Lord Paddick, raised this and I have some empathy with part of what he said, for the reason I will explain. Section 60 was intended, again, to circumscribe certain areas where there was to be stop and search without cause—perhaps a park where many people had been stabbed or a location where gangs had been meeting and attacking each other. In that area, everybody was warned, “If you go in this area and carry a knife, you are likely to be stopped and searched without cause”, because the idea was to disrupt their offending pattern. I agree with the noble Lord, Lord Paddick, that often these areas are not well described. People are not told that they are about to enter one, so, therefore, when an officer stops someone, they can be suspicious and ask whether they are in a Section 60 area or have they been stopped and searched for no good reason at all.
As I said, I am not a zealot for stop and search. In 2011, when I took over the Met, we had just had the London riots. We never had a public inquiry into those events, but one of the conclusions I drew for myself when I looked at the figures was that stop and search had been very high. In the two preceding years, 2.6 million people had been stopped and searched in London. At the time, there were only 8.4 million people living in London. If we discount people who were not on the streets because they were older or younger, this was a very high number and that worried me. Over the succeeding three to four years, we reduced stop and search by 60% and we reduced Section 60s by 90% because, frankly, they were like confetti scattered around London. Ironically, the more there were, the less they could be policed.
There was a disproportionate amount of vague stop and search. Within that, we had disproportionality: there were very high figures for people of Asian appearance after 9/11 and that was certainly true of the black community as well. Over three years, we managed to get the stop and search disproportionality for people of Asian appearance down, from over seven times more likely than the white community, to less than one compared to the white community. We did not have as much success with the black community. We got better but nowhere near what I would call a more representative look.
I am only trying to convince your Lordships of two things. A targeted stop and search, even where there is not a cause, can be really helpful, either geographically or targeted on the offender. That is where the serious crime prevention orders can make an impact. Generally, they are targeted only at people who have been convicted already of carrying a knife, or who have been carrying a knife and have not been convicted but a court has been persuaded that there is a good reason.
Lord Coaker (Lab)
My Lords, all of us in the Chamber are united by our desire to tackle violent crime, target police resources better and see fewer victims of crime. If we look at the Government’s own statistics with respect to this, it is worth reminding ourselves that to be fair to the Government, this is what they are seeking to try to deal with. In the impact assessment we see that offences involving knives increased by 84% between June 2014 and June 2020, homicides increased by 38% and gun crime rose by 28%. In the year ending June 2020, 262 people were stabbed to death, with 4,800 admissions for assault by a sharp object. Just recently, we have seen the horrific figure of 30 young people murdered on the streets of London. You can see why the Government are seeking to do something.
Any Government would want to do something, but what is being said to the Government is: are the serious violence prevention orders and the way in which they are set up the way to deal with that? That is the purpose of many of the amendments, many of which we support. The purpose of the amendments today—again, we have heard many arguments from many noble Lords in this House—is to raise those concerns and air those issues about how the orders will be used and the breadth of who they can be applied to. There is some difference of opinion, as we have just heard from the noble Lord, Lord Hogan-Howe, in his view of stop and search without suspicion and its use, and others have very serious concerns about it.
If the measures—these orders—are to go ahead, the crucial thing for this House is to ensure that the pilot that the Government have said they will carry out with respect to these orders is absolutely right, and to make sure that it is not just a tick-box exercise that the Government can use to say, “There you are—that proves what we said in the first place.” In particular, we need to look at whether the issues that have been raised, quite rightly, actually occur, in which case the orders would be inappropriate. Most important of all: do the orders work? Will they actually bring down those horrific figures that I just mentioned in the way that we would all want? Do they reduce and prevent violent crime, are they successful at diverting people away from crime and the criminal justice system, and are they a good use of police resources?
I pay tribute to my noble friend Lady Armstrong who, for good reason, cannot be with us today, for her Amendments 90K and 90L, and to the right reverend Prelate the Bishop of Gloucester for her support for them. They raise the issue of women and girls who have been exploited in gangs and are likely to be caught up in the provisions of these serious violence prevention orders, in particular where, in the phrase we have heard from many noble Lords, they “ought to have known” that a companion was carrying a knife. Notwithstanding what has been said, my own experience of this is that “ought to have known” ignores the reality of the coercive and abusive nature of many girls’ involvement in those gangs. It is not the “ought to have known” that we would all think about when we talk about the lives we lead. In the chaotic lifestyle of those gang members, “ought to have known” is an unreasonable expectation. It is absolutely vital that the pilot looks at how those provisions impact on violence against women and girls and their impact on vulnerable and exploited women.
Therefore, because of the importance of the pilot, we strongly support the amendments in the names of the noble Baroness, Lady Meacher, the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Paddick: Amendments 95A, 95B and 95C. Amendment 95B in particular brings all of these debates together in ensuring that Parliament not only gets a report on the pilot but a detailed answer from the Government on any issues that the pilot raises. Not many amendments could be quite as reasonable as that. It would provide simple parliamentary scrutiny and allow Parliament then to make a decision on whether these orders work and should be rolled out and on whether the issues that many noble Lords have raised are right.
Amendment 95C ensures the pilot is a genuine evidence-gathering exercise and considers, as I say, all the important issues raised. I raised the issue of parliamentary scrutiny in Committee, as did others, and I am grateful to the Minister for writing to the noble Lord, Lord Paddick, in response to the points raised and copying it to other noble Lords. At the moment, the Bill would provide that certain details of the orders are provided in regulations that would be subject to the affirmative procedure, which is welcome. The amendment would take this one step further—quite rightly, which is why we support it. It would ensure that the decision over whether to introduce the orders, once we have genuine evidence on how they have worked following the pilot, is taken by Parliament and not just by the Home Office. I respectfully suggest that that would not be too big an ask. The Government have already accepted that these orders need to be piloted, so if the principle of piloting has been accepted, surely Parliament should be able to scrutinise whether the pilot has been a success and whether the issues raised by noble Lords and indeed others in the other place are right.
All of us are united by a desire to tackle serious and violent crime, but that does not mean that we should just take any action that this Parliament considers necessary without considering the consequences. Stop and search without suspicion is probably one action that highlights that more than any other, but there have certainly been other issues related to women and girls as well. I ask the Minister to consider parliamentary scrutiny and whether these orders should go forward. I would suggest that is a perfectly reasonable response for this Chamber and others to make.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as we have heard, these amendments are about two things: serious violence reduction orders and stop and search powers more broadly. I am grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, for setting out the case for their amendments, and to other noble Lords for promoting the points of the noble Baroness, Lady Armstrong, in her absence. We wish her well.
Amendments 90G, 90M and 91C would raise the threshold for the standard of proof required to impose an SVRO from the civil to the criminal standard. SVROs are civil orders introduced to protect communities and deter offenders from future offending. As such, we think that the civil standard is appropriate to enable a court to consider a wide range of evidence from both the offender and the prosecution when considering whether to make an SVRO.
Amendments 90H, 90J, 90K and 90L all seek to limit the circumstances in which an SVRO may be made. As regards Amendment 90H, it is the Government’s view that an SVRO should be available when an adult has been convicted of an offence where a knife or offensive weapon was present, whether it was used in the commission of the offence or not. But this does not mean that an SVRO will be applied for, or made, in all such cases. The prosecution would first need to consider whether it was appropriate to make an application to the court for an SVRO. The court must consider it necessary to make the SVRO in order to protect the public or prevent reoffending, and it would be very difficult to see how a court might consider an SVRO to be necessary if there was no evidence of risk of harm involving a knife or offensive weapon or risk of knife or offensive weapons offending; the bladed article was not relevant to the offence; or the individual was in possession of a bladed article with a reasonable excuse such as for use at work or for religious purposes—the right reverend Prelate the Bishop of Manchester gave an example of the church picnic.
Amendments 90J, 90K and 90L would remove provisions in the Bill that would allow an order to be made if another person who committed the offence used or had with them a bladed article or offensive weapon in the commission of the offence and the offender knew or ought to have known that this would be the case. I reiterate that, for an SVRO to be made in any circumstances, the individual must have been convicted of an offence where a bladed article or offensive weapon was used in the commission of the offence or was with either the offender or another individual who was also convicted of an offence arising from the same set of facts. This provision would capture a situation where more than one person was convicted of an offence arising from the same set of facts, but not all the individuals used a bladed article or offensive weapon in the commission of the offence, or had such an item with them when the offence was committed.
In these circumstances, an SVRO may still be necessary to protect the public or any particular members of the public, including the offender, from the risk of harm involving a bladed article or offensive weapon, or to prevent the offender from committing an offence involving a bladed article or offensive weapon—for example, a fight or robbery where the offender in possession of a knife and the offender not in possession of the knife are convicted of offences arising from the same facts. In any such case, the prosecution must consider whether to make an application for an SVRO and the court must consider whether to grant that order. I think the noble Lord, Lord Hogan-Howe, made that point. Both the prosecution and the court therefore retain discretion to determine the appropriate course of action on a case-by-case basis. On my noble friend Lord Moylan’s point about “ought to have known”, I will undertake to ensure that we address that point in the statutory guidance; it is a good point. I also add that the phrase is used in other legislation, so it is not a new concept that is unknown to the courts, albeit that it is used in different circumstances. I will take that one back.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this important debate. I particularly thank the right reverend Prelates and the noble and right reverend Lord, Lord Sentamu, for their contributions. Unfortunately, I did not hear the Minister adequately address their points or the issues that I raised. I asked specific questions about the Minister’s letter of 6 January, but she appeared just to stand at the Dispatch Box and repeat what was in that letter.
As far as I am concerned, I would not be satisfied about the pilots, but that is a decision for the noble Baroness, Lady Meacher, to take shortly. My understanding is that noble Lords are coalescing around a vote on Amendments 95A, 95B and 95C, so I think we should get on with it. I beg leave to withdraw my amendment.
“(8A) The court may adjourn any proceedings on an application for a serious violence reduction order even after sentencing the offender.(8B) If the offender does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for the offender’s arrest, or(c) hear the proceedings in the offender’s absence.(8C) The court may not act under subsection (8B)(b) unless it is satisfied that the offender has had adequate notice of the time and place of the adjourned proceedings.(8D) The court may not act under subsection (8B)(c) unless it is satisfied that the offender—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the offender does not appear for those proceedings the court may hear the proceedings in the offender’s absence.”Member’s explanatory statement
This amendment makes it explicit that, if an application for a serious violence reduction order is made, the court may adjourn proceedings on the application after sentencing the offender.
Member’s explanatory statement
This amendment widens the power to issue guidance in new section 342J of the Sentencing Code so that guidance may be issued on any matter relating to serious violence reduction orders.
“(1A) The guidance may in particular include— (a) guidance about the exercise by constables, chief officers of police and the chief constable of the British Transport Police Force of their functions under this Chapter,(b) guidance about identifying offenders in respect of whom it may be appropriate for applications for serious violence reduction orders to be made, and(c) guidance about providing assistance to prosecutors in connection with applications for serious violence reduction orders.”Member’s explanatory statement
This amendment provides a non-exhaustive list of the matters that may be covered by guidance issued under new section 342J of the Sentencing Code.
Member’s explanatory statement
This amendment is consequential on Baroness Williams of Trafford's second amendment to Clause 141.
<strong>“342JA </strong> Guidance: Parliamentary procedure(1) Before issuing guidance under section 342J, the Secretary of State must lay a draft of the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the draft guidance, the guidance may not be issued.(3) If no such resolution is made within that period, the Secretary of State may issue the guidance.(4) In this section “the 40-day period”, in relation to draft guidance, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).(5) In calculating the 40-day period, no account is to be taken of any period during which—(a) Parliament is dissolved or prorogued, or(b) both Houses are adjourned for more than 4 days.”Member’s explanatory statement
This amendment applies a negative resolution procedure to the power to issue guidance under new section 342J of the Sentencing Code.
Baroness Meacher
Baroness Meacher (CB)
My Lords, I hope the House will forgive me if I say a few words in response to the Minister on Amendment 95A. The fact is that Amendments 95A and 95B would require the Government not only to lay the results of a full pilot before Parliament but to enable Parliament to decide whether SVROs should be rolled out across the country. We know that there is no evidence to suggest the wholesale expansion or extension of stop and search where there is no immediate evidence of potential wrongdoing in the situation. Therefore, all we are asking is that Parliament should be satisfied from the pilot that there is evidence that SVROs will reduce severe violence and protect communities—which we want to happen—and that that can be done without disproportionate detriment, particularly to black communities and to very vulnerable women but also to people in general.
We are asking for the pilot to be presented to Parliament and for Parliament to approve that SVROs should be rolled out. Because the Minister was unable to suggest that there should be any such democratic decision-making on this issue, I would like to test the opinion of the House on both Amendments 95A and 95B —but the vote will be on Amendment 95A, with Amendment 95B as the consequential amendment.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
Amendments 95B and 95C are consequential and will therefore be taken en bloc.
Amendments 95B and 95C
Baroness Meacher
“(3A) The condition in this subsection is that the Secretary of State has laid before Parliament a response addressing any issues identified in the report produced under subsection (3).(3B) A statutory instrument containing regulations under section 178(1) for the purposes mentioned in subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment would ensure that the section concerning Serious Violence Reduction Orders can only be commenced once a report on the pilot has been laid before Parliament and both Houses have voted on its commencement.
“(3A) Before making the report under subsection (3), the Secretary of State must obtain, record and publish all reasonably available data, which is relevant to the effect of the operation of Chapter 1A of Part 11 of the Sentencing Code (inserted by section 141) under subsection (2) over a period of no less than 12 months, including—(a) its impact on the extent to which knives or weapons are carried;(b) its impact on the rate of serious violence;(c) the age, race, and sex (within the meaning of section 5, 9 and 11 of the Equality Act 2010) of each person—(i) in respect of whom an application is made under section 342A(1)(b) of the Sentencing Code;(ii) in respect of whom a serious violence reduction order is made by a court;(iii) in respect of whom an application is made under section 342A(1) of the Sentencing Code and the court has adjourned proceedings pursuant to section 342A(8A) or (8B);(iv) in respect of whom action is taken pursuant to section 342C, 342E, 342F, or 342H of the Sentencing Code; and(v) who is convicted of an offence within section 342G of the Sentencing Code;(d) any action which was taken pursuant to sections 342C, 342E, 342F, or 342H of the Sentencing Code, by reference to the age, race and sex of the offender;(e) the nature of, and reasons recorded for, any such action;(f) any complaint arising from the exercise of powers under section 342E of the Sentencing Code, the nature and outcome of that complaint, and the age, race and sex of the person who made it;(g) the offence within section 342G of the Sentencing Code for which any person was convicted and the sentence imposed, by reference to the age, race and sex of that person;(h) for each serious violence reduction order made— (i) the offence identified under section 342A(1)(a) of the Sentencing Code; (ii) whether the order was imposed under subsection 342A(3)(a), (3)(b), (4)(a) or 4(b) of the Sentencing Code; and(iii) if the order was imposed under subsection 342A(4)(a) or (4)(b), whether the order was made on the basis that the offender knew that a bladed article or offensive weapon was used by another person; or whether the offender ought to have known that this would be the case;(i) whether that operation of Chapter 1A of the Sentencing Code had a discriminatory, disproportionate or other adverse impact on people sharing the protected characteristic of age, race or sex;(j) the number of survivors and victims of domestic abuse, including women who have experienced or are experiencing criminal exploitation, coercive control, or other forms of abuse, who are given such orders, broken down by ethnicity, age, and policing borough.(3B) The report under subsection (3) must include—(a) an analysis of the effect described in subsection (3A), by reference to the data identified in subsection (3A);(b) an equality impact assessment of the operation of Chapter 1A of the Sentencing Code as described in subsection (3A);(c) a description of any guidance or codes of practice, to which the operation of Chapter 1A described in subsection (3A) was subject;(d) analysis of data assessing the extent to which the pilot has reduced serious violent crime and reoffending by comparison with other areas;(e) analysis of what evidence is relied on to justify the imposition of serious violence reduction orders, and whether there is any bias in the decision-making process;(f) analysis of information on the reason for each breach of a serious violence reduction order, any defence pleaded, and the result of the breach proceedings;(g) analysis of any impacts, including equalities impacts, of other positive requirements or conditions imposed on individuals pursuant to section 342C(1) of the Sentencing Code;(h) analysis of any impacts, including equalities impacts, of adjournment of proceedings on individuals where the court adjourns proceedings under section 342A(8A) or (8B); and(i) analysis of any impacts of serious violence reduction orders on survivors and victims of domestic abuse, including women who have experienced or are experiencing criminal exploitation, coercive control, or other forms of abuse, who are given such orders.(3C) Statistical information collected for the purposes of section (3B) from different pilot areas must be collected and presented in a form which enables direct comparison between those areas.”Member’s explanatory statement
This amendment strengthens the pilot provided for under Clause 142, with particular attention paid to equalities impacts and impacts on survivors and victims of domestic abuse and criminal exploitation.
“CHAPTER 1AKNIFE CRIME PREVENTION ORDERSKnife crime prevention order on conviction: adjournment of proceedings
(1) In section 19 of the Offensive Weapons Act 2019 (knife crime prevention orders made on conviction), after subsection (9) insert—“(9A) The court may adjourn any proceedings on an application for a knife crime prevention order even after sentencing the defendant.(9B) If the defendant does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for the defendant’s arrest, or(c) hear the proceedings in the defendant’s absence.(9C) The court may not act under subsection (9B)(b) unless it is satisfied that the defendant has had adequate notice of the time and place of the adjourned proceedings.(9D) The court may not act under subsection (9B)(c) unless it is satisfied that the defendant—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the defendant does not appear for those proceedings the court may hear the proceedings in the defendant’s absence.”(2) Regulations under section 178(1) which bring subsection (1) into force only for a specified purpose or in relation to a specified area may—(a) provide for that provision to be in force for that purpose or in relation to that area for a specified period;(b) make transitional or saving provision in relation to that provision ceasing to be in force at the end of the specified period.(3) Regulations containing provision by virtue of subsection (2)(a) may be amended by subsequent regulations under section 178(1) so as to continue subsection (1) in force for the specified purpose or in relation to the specified area for a further specified period.(4) In this section “specified” means specified in regulations under section 178(1).”Member’s explanatory statement
This amendment makes it explicit that, if an application for a knife crime prevention order is made following a defendant’s conviction of an offence, the court may adjourn proceedings on the application after sentencing the defendant.
Lord Sharpe of Epsom
“CHAPTER 4FOOTBALL BANNING ORDERSFootball banning orders: relevant offences
(1) The Football Spectators Act 1989 is amended as follows.(2) Schedule 1 (football banning orders: relevant offences) is amended in accordance with subsections (3) to (7).(3) In paragraph 1(c) (certain offences under the Public Order Act 1986 committed at premises)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”.(4) In paragraph 1(k) (certain offences under the Public Order Act 1986 committed on a journey to or from a football match)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”. (5) In paragraph 1(q) (certain offences under the Public Order Act 1986 which the court declares to be related to a football match)—(a) after “any offence under section” insert “4,”,(b) before “harassment” insert “fear or provocation of violence, or”, and(c) omit “or any provision of Part 3 or 3A of that Act (hatred by reference to race etc)”.(6) In paragraph 1, after paragraph (u) insert—“(v) any offence under any provision of Part 3 or 3A of the Public Order Act 1986 (hatred by reference to race etc)—(i) which does not fall within paragraph (c) or (k), and(ii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(w) any offence under section 31 of the Crime and Disorder Act 1998 (racially or religiously aggravated public order offences) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(x) any offence under section 1 of the Malicious Communications Act 1988 (offence of sending letter, electronic communication or article with intent to cause distress or anxiety)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(y) any offence under section 127(1) of the Communications Act 2003 (improper use of public telecommunications network)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation.”(7) In paragraph 4—(a) the words from “In this Schedule” to “Part II of this Act.” become sub-paragraph (1), (b) after sub-paragraph (1) insert—“(1A) In this Schedule “football organisation” means an organisation which is a regulated football organisation for the purposes of Part 2 of this Act.”, and(c) after sub-paragraph (2) insert—“(3) The provision that may be made by an order made by the Secretary of State for the purposes of this Schedule includes provision that a person has a prescribed connection with a football organisation where— (a) the person has had a connection of a prescribed kind with a football organisation in the past, or(b) the person will or may have a connection of a prescribed kind with a football organisation in the future.”(8) In section 14 (main definitions), after subsection (2) insert—“(2A) “Regulated football organisation” means an organisation (whether in the United Kingdom or elsewhere) which—(a) relates to association football, and(b) is a prescribed organisation or an organisation of a prescribed description.”(9) Section 23 (further provision about, and appeals against, declarations of relevance) is amended in accordance with subsections (10) and (11).(10) In subsection (1), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to a particular football match or to particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation,as the case may be.”(11) In subsection (5), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to one or more particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation.”(12) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force (so far as it has not previously been commenced by section 178(4)(ta)).”Member’s explanatory statement
This amendment modifies the list of relevant offences in Schedule 1 to the Football Spectators Act 1989 which trigger the making of a football banning order to include, in particular, certain offences relating to race or religion and certain online hate offences.
Lord Sharpe of Epsom (Con)
My Lords, I beg to move the amendment in the name of my noble friend Lady Williams of Trafford.
These amendments give effect to a commitment made by the Prime Minister in the immediate aftermath of the final of Euro 2020. The whole of England was disappointed by the outcome, and that is understandable. What was not excusable or acceptable was the racist abuse directed at certain England players. Your Lordships will also be aware of the ubiquitous slow drip of hateful online abuse many high-profile footballers are subjected to. In the light of that behaviour, the Prime Minister announced that we would legislate to extend the football banning order regime to cover online abuse, and that is the purpose of these amendments. In Committee, the noble Lord, Lord Bassam, tabled an amendment directed to the same end. In response, I said that the Government would look to legislate as soon as possible, and that is what we are doing. I hope the noble Lord will feel that his objectives have now been met and will welcome these amendments.
Football banning orders were first introduced in 1989. The intention of these new clauses is to amend the operation of the football banning order regime to enable a court to impose a football banning order against persons convicted of online hate offences connected to football. The amendments will also enable a court to impose a football banning order for other race, religious or sexual orientation hate offences against persons with a prescribed connection to a football organisation where the incident would not fall under the existing coverage. This will prevent such offenders propagating their criminal, hateful views at football matches. I sincerely hope that this measure will also deter others from engaging in similar behaviour that is so harmful to the victims and our national game.
Amendment 96B will amend the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations subject to the affirmative procedure. A person can receive a football banning order following conviction for a relevant offence. There is no intention to use the new regulation-making power to add to the schedule offences that do not involve violence, disorderly behaviour or harm to others, or a risk or threat of such, nor to add offences which are not football-related. Rather, this will enable the Secretary of State to ensure that the list of relevant offences for the purposes of football banning order proceedings can be kept up to date and relevant in the event of amendment to the Acts listed in the schedule or developing trends of harm or disorder relating to football, such as online hate offences.
Finally, Amendment 96C will amend the consideration that a court undertakes in deciding whether to impose a football banning order against a person convicted of a football-related offence under the 1989 Act. It will remove the requirement that the convicted person must pose an identifiable risk of violence or disorder at or in connection with football matches. I must again reference the vile online racist abuse of England players after the Euro 2020 final. Under the current test, courts may not be convinced that offenders convicted of racist online offences pose an identifiable risk of violence and disorder at matches. However, I believe that it is imperative to ensure that such offenders can be prevented from spreading their hateful words at football matches. Courts will retain their powers of discretion if there are particular circumstances relating to the offence or the offender which would make it unjust to impose a football banning order, with a requirement that they state in open court their reasons for not doing so.
We can all agree that there is no place for racist abuse in football—or more widely—and it is right that we should send a strong signal that those convicted of racist abuse or other unconscionable hatred connected to football should not be allowed to attend football matches to spread their poisonous prejudices. This is a sensible and much-needed change to the legislation governing football and I ask your Lordships to endorse it.
Lord Paddick (LD)
My Lords, can the Minister confirm the impact these amendments will have on homophobic abuse of soccer players? I think he mentioned it once. Tom Daley on Channel 4’s “Alternative Christmas Message” talked about the fact that no professional footballers in the UK have publicly said they are gay: fear of public reaction is probably a big part of the reason why. In fact, globally, it is my understanding that only one professional soccer player has come out as gay, and he plays in Australia.
People have shied away from a hierarchy of diversity, but I have always believed that racism is a bigger problem than homophobia: some people can hide their sexuality, but few people of colour can hide their race. Having said that, people can hide their religious beliefs; there are many white Muslims, for example. These amendments cover religion but not, at least immediately obviously, sexuality. Racism is still a huge problem, and these amendments are welcome, but where is the clear and unambiguous message in these amendments that homophobic abuse directed at football players is just as unacceptable as racism and Islamophobia? It is not clear to me.
Even the Government’s explanatory statement for these amendments refers to
“certain offences relating to race or religion and certain online hate offences.”
If I am having to search the many and various pieces of legislation mentioned in these amendments to satisfy myself that people like me are covered, then these amendments do not send a clear and unambiguous message that homophobic abuse is as unacceptable as racism and Islamophobia. The Law Commission in its recent report on hate crime identifies the need to place sexual and gender diversity hatred on the same footing as race hatred, so what assurances can the Minister give in this case? I do not want perfection to be the enemy of the good, and there will still be an opportunity to provide clarification at Third Reading, but I look forward to the Minister’s response.
Lord Bassam of Brighton (Lab)
My Lords, it would be remiss of me not to thank the Government for bringing forward these amendments. They very much fulfil the objectives that I set out in moving my amendments in Committee. Imagine my slight surprise when I received an email shortly before Christmas from one of the officials telling me about this, though it had been suggested to me, and that the announcement was going to be made on Boxing Day—not a day traditionally used for parliamentary consideration. But I was pleased to hear that the Government were going to bring forward the amendments. I offered at one stage to co-sign them, but that seems to have got lost in the mists.
I am not entirely convinced that we would have seen these amendments if we had not brought them forward in Committee and threatened the Government with, I suspect, the possibility of a defeat on them. It has taken the Government too long to get to this point. Boris Johnson himself mentioned it back in July, but we have been campaigning on this issue for some years, and these amendments are long overdue.
Turning to the points raised by the noble Lord, Lord Paddick, I too would like to see some clarification as to whether these amendments will cover homophobic abuse. It is fair to say that many of the football clubs are well ahead of the Government on this already. I know that my own football club, Brighton & Hove Albion, has long taken the view that homophobic abuse is unacceptable and made that very clear, not just in its programmes and publicity but in its action. That is to be welcomed. Many clubs have adopted that approach and now take pride in supporting gay footballers and ensuring that people do not get abused in that way at games. That is to be welcomed, but we need some legislative clarity.
I have one further point that I wish to pursue with the Government. The Bill is an opportunity to cover online abuse wherever it manifests. Although football understandably is a natural focus for this because, let us face it, that is where a lot of racist abuse has been channelled over the last few years, particularly last summer, I challenge the Government to bring forward a further amendment which covers other sports. We are all very conscious and aware of the racism that is there in other sports and sporting activities, and the abuse that many black and minority-ethnic cricketers, in particular, have suffered.
We should try to deal with the whole package, and it would be a good challenge for the Government to meet to bring forward amendments that we and, I am sure, other Members of your Lordships’ House would support at Third Reading. We would be more than happy to use our drafting talents to make sure it happened. It would clarify once and for all the position for all sports men and women across the UK, and it would send a strong and important message that this is just not acceptable behaviour in any shape or form in any sporting arena or in any sport.
I support the noble Lord, Lord Paddick, in seeking clarity about homophobic abuse; that is really important. I would like the Government to bring forward further amendments to cover other sports at Third Reading. I do not think that it is beyond the wit of the Government they have clever and cunning draftspeople at their beck and call and there are plenty of us in this House who would want to support that and sign up to that agenda.
I place on record my thanks to the Minister and Ministers generally, to the Home Office staff who have supported them, and to our own staff in our Labour Lords team who did the original drafting, because this is an important step forward and we should recognise that.
Lord Sentamu (CB)
My Lords, I too support these amendments and thank the Government for their clarity; there were some other sections about which we were not sure in terms of their language. Again, sorry to sound as though I am stuck in a groove: in the Stephen Lawrence inquiry and its recommendations there is a definition of a racist incident and a homophobic incident. Parliament, in the other place, accepted all 70 recommendations. If you want to find how to phrase what the noble Lord, Lord Paddick, is talking about, it is already there in the Stephen Lawrence inquiry report and the recommendations that we made.
The thing about the law is that it must be predictable, easy to understand and not shrouded in mystery. I support the noble Lord, Lord Paddick. The Government need to be clear about this and the language because the other place accepted all 70 recommendations. It is in there, and it would be a mistake not to be very clear about the whole question of these homophobic incidents and the abuse that some people have suffered. I would support the Government in finding that language. They could put in similar words about what they have actually done about racism.
Lord Pannick (CB)
My Lords, I agree with the noble Lord, Lord Paddick, that it is very important to have clarity that homophobic abuse is here covered. For my part, I understand—I ask the Minister to confirm whether he agrees—that the substance of these amendments does cover homophobic abuse, in particular proposed new subsection (6) of the new clause, which refers to Part 3A of the Public Order Act 1986, which, as I understand it, specifically covers homophobic abuse, as does proposed new subsection (6)(x)(ii), which refers to Section 66(1) of the Sentencing Code, which, again, I understand covers homophobic hostility as well as racial hostility. But clarity is absolutely essential here.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for their contributions to this debate. In answer to the noble Lords, Lord Paddick, Lord Bassam and Lord Pannick, I can happily clarify that this includes homophobic and misogynistic hate speech, and all other forms of hate speech. The noble Lord, Lord Pannick, is absolutely right: it is under Section 3A of the Public Order Act 1986. I am afraid I do not have the Sentencing Code so I will have to look into that for him.
The core amendments apply to online hate speech where the court has found on sentencing that the offence was aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity. This reflects the five types of hate crime recognised by the law, which I think is the Sentencing Code.
I agree with the point made by the noble Lord, Lord Bassam, about other sports. I have heard the DCMS Minister answer questions on this, and there will of course be other opportunities in other Bills coming up, which I suspect will also have something to say on the subject, but I will take it back to both departments.
Lord Paddick (LD)
Before the Minister sits down, could I clarify what he just said? It threw another confusion at me. He said it covers misogynistic hate speech. I am not sure misogyny is a hate crime. Therefore, I am not sure the Minister is correct on that point. Perhaps he could clarify.
Lord Sharpe of Epsom (Con)
I am afraid I will have to write to him to clarify that point.
Lord Bassam of Brighton (Lab)
My Lords, I am grateful to the Minister for his comments and his agreement to take that away. For our part, we would very much welcome a discussion on that with him and his officials, if that is at all possible. We are some way off from the Third Reading, and, clearly, we would be in a position to bring forward an amendment if that would help.
It would be for the good if we could have some cross-party agreement on this, because it is an issue on which we can have a shared view. That shared view adds extra emphasis and import to the progress that we make. We would very much welcome the Minister facilitating that discussion, and obviously we would be delighted if the Government were to concede and bring forward amendments which cover all other sports as well.
Lord Sharpe of Epsom
“Football banning orders: power to amend list of relevant offences
(1) In section 14 of the Football Spectators Act 1989 (main definitions), after subsection (8) insert—“(9) The Secretary of State may by regulations amend paragraph 1 of Schedule 1 so as to add, modify or remove a reference to an offence or a description of offence.(10) Regulations under subsection (9) may make consequential amendments to this Act.(11) A statutory instrument containing regulations under subsection (9) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”(2) Section 22A of that Act (other interpretation, etc) is amended in accordance with subsections (3) and (4).(3) In subsection (3), after “order” insert “or regulations”.(4) After subsection (3) insert—“(3A) An order or regulations under this Part—(a) may make different provision for different purposes;(b) may make consequential, supplementary, incidental, transitional, transitory or saving provision.””Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations.
“Football banning orders: requirement to make order on conviction etc
(1) In section 14A of the Football Spectators Act 1989 (banning order made on conviction of an offence), for subsections (2) and (3) substitute—“(2) The court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so.(3) Where the court does not make a banning order it must state in open court the reasons for not doing so.”(2) Section 22 of that Act (banning orders arising out of offences outside England and Wales) is amended in accordance with subsections (3) and (4).(3) In subsection (4), for the words following paragraph (b) substitute—“must make a banning order in relation to the person, unless subsection (5) applies.” (4) For subsections (5) and (5A) substitute—“(5) This subsection applies if—(a) it appears to the court that the conviction of the corresponding offence in a country outside England and Wales is the subject of proceedings in a court of law in that country questioning the conviction, or(b) the court considers that there are particular circumstances relating to the corresponding offence or to the person which would make it unjust in all the circumstances to make a banning order.(5A) Where the court does not make a banning order on the ground mentioned in subsection (5)(b) it must state in open court the reasons for not doing so.”(5) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force.”Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 so that a court is required to make a football banning order on a person’s conviction of a relevant offence unless there are particular circumstances which would make it unjust to do so. It also makes equivalent provision in relation to a person convicted of a corresponding offence overseas.
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met;(e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in— (i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, incl uding conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only—(i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and (b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group propose the establishment of a women’s justice board, along the lines of the Youth Justice Board. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Bennett of Manor Castle, for adding their names.
The drafting of the two amendments remains as it was in Committee, and closely reflects the wording of the provisions in the Crime and Disorder Act 1998 establishing the Youth Justice Board. When we debated these amendments in Committee, on 17 November, they enjoyed widespread support from everyone, except the Minister. The diversity and unanimity of the support we received, I suggest, speaks volumes. Indeed, the support from the Labour Party was unqualified. The noble and learned Lord, Lord Falconer, said:
“We on this side of the Committee strongly support these excellent amendments”.—[Official Report, 17/11/21; col. 327.]
He spoke of the need to give real drive to the movement to further the needs of women within the criminal justice system.
No one disputes that the Youth Justice Board has been a resounding success. It has concentrated effort on recognising and addressing the special needs of young people within the criminal justice system. It has diverted many away from involvement with the system, and offered help and support to those who have been convicted and sentenced, both with community sentences and in custodial settings. The figures speak for themselves: in the last 15 years, the number of under-18s in custody in this jurisdiction fell by about three-quarters, to well under 800 now.
The establishment of a women’s justice board could, we believe, achieve similar success for women, by concentrating effort and resources on helping women who come into contact with the criminal justice system, diverting them from custody, improving the effectiveness of community sentences for women, increasing their use in consequence, and building ways of offering women offenders specialist support with the special issues and difficulties that they face. In Committee we debated those at length.
We also considered the appalling effect of custody on women and their children. The harsh truth is that 19 out of 20 children whose mothers are imprisoned are forced to leave their homes. All the evidence is that those children are themselves more likely to become involved in crime, more likely to suffer from mental ill health and to fail at school, and less likely to find stable employment as young adults—all to the detriment of society at large. The Minister, replying in Committee, disagreed with the proposition that there is a crisis of confidence in women’s justice. That is not the view of the overwhelming majority of experts and those working in this area, who are all deeply troubled by the lack of specialist support and consideration for women in the system.
It is true that, as the Minister said, we have the female offenders strategy, which started in 2018, and the Advisory Board on Female Offenders. The Ministry of Justice is doing work in this area, but it was working in the area of youth justice before 1998, and that did not obviate the need for the Youth Justice Board.
The Minister said in Committee, and repeated when we met the other day—I am grateful to him for the time and care that he has taken, as he always does, to consider the arguments on this issue—that the key point, from the Government’s point of view, was that we do not have a separate criminal justice system for women and girls, as we do for young offenders. As he put it, there is no separate legal framework; women are dealt with as part of the adult offender population. He drew a distinction, for that reason, between women’s position in the criminal justice system and that of young offenders, whom the law treats differently from adults.
I am afraid I do not follow that logic. It seems to me that it contains a non sequitur. The Government accept that women, like young offenders, have special needs in the criminal justice system. The Minister himself spoke of women having particular needs which we needed to identify. I say we need to do more than to identify them; we need to address them. He spoke of the prevalence of mental health issues, of the number of women survivors of abuse—I took it that he was referring to both sexual and physical abuse—and of the closer link among women offenders between drug and alcohol abuse and reoffending than exists for male offenders.
The Minister did not speak in Committee about the particular family issues faced by women in the system—but the effects of custody on the children and families of women offenders are devastating. We have heard about them, in particular, in the debates on the amendments proposed by the right reverend Prelate the Bishop of Gloucester on primary carers. It is no answer to the need for special attention to women’s needs in the criminal justice system to say that women are subject to the same criminal law as men. That fact, of itself, does nothing to address those special needs.
The Minister raised in Committee the issue of the time needed to establish a women’s justice board, but if we could achieve, in 23 years, anything like the same improvements as the Youth Justice Board has achieved in that time, that would be swift progress indeed. He also spoke of the cost implications of establishing a women’s justice board. That does not allow for the substantial savings that would follow from keeping even a few women out of custody, with the knock-on social costs of taking children into care, and the social costs that follow from women’s involvement in the criminal justice system, particularly when they receive custodial sentences.
There is simply no genuine and convincing answer to this proposal. I urge the Government simply to accept that establishing a women’s justice board would be the most effective, and the most promising, way to achieve all that they themselves say that they wish to do for women who find themselves entangled in a system that lamentably fails to address their particular difficulties. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the amendment, because there is a real problem at the heart of criminal justice, which leads to the dissatisfaction that women feel about the justice system. We have created our system around a notion of gender equality that followed on from many years of using the male pronoun, “he”, with the person at the heart of the criminal justice system being a male agent. We then decided that we could not have that any longer, and that the way forward was gender neutrality. But of course gender neutrality is to a large extent a fiction. We know that that neutrality—creating some sort of supposed equality in criminal justice—actually creates further inequality. To treat as equal those who are not yet equal creates only further inequality. I want to emphasise that: it creates further inequality to pretend that we now have equality between the sexes. That is why I feel—although I know it is never comfortable for Governments to take ideas from elsewhere—that having such a board is a necessary part of addressing the great public discontent about the system and the way it deals with women.
I support the idea of a board that looks specifically at women in prison. We know that the majority of them have mental health issues and that their dependency on drugs and drink often derives from backgrounds of abuse: having been brought up in families where abuse was prevalent, or having themselves been at the receiving end of abuse. Understanding women in prison, how they themselves almost invariably have been victims of crime, is one of the ways in which we will progress the system. The Government should adopt this idea.
We need to concentrate on addressing what happens when women go to prison, because often they lose their accommodation and their children are taken into care. The disruption of everything that matters to them is so great that it is very difficult to repair. I therefore support the amendment. It is worthy of this House’s consideration and it is regrettable that it has been dismissed out of hand. There is a problem at the heart of this: you cannot move from inequality to equality simply by saying that there is equality now.
Lord Ramsbotham (CB)
My Lords, I strongly support this amendment. Noting the success of the Youth Justice Board, as the noble Lord, Lord Marks, did, I venture to suggest that many of the problems of women in the criminal justice system would disappear if there was such a board, and the establishment of women’s offending teams.
The Lord Bishop of Gloucester
My Lords, I add my wholehearted support to this amendment. I am very grateful to the noble Lords, Lord Marks and Lord Ramsbotham, and the noble Baroness, Lady Bennett, for their continued commitment to women in the criminal justice system. As bishop to prisons and president of the Nelson Trust, I am acutely aware, as I have said so often, of the need for a gendered approach to justice. The noble Baroness, Lady Kennedy, has just put that very powerfully.
While men and women need to be treated with equal justice, equality is not about sameness. Women are caught up in a criminal justice system that has been designed around men, and there needs to be a gendered lens. As we have heard already, many, many women are more likely than men to be primary carers or victims of abuse or exploitation. When they are given a prison sentence, they are more likely to be given a very short one, often far from home. I do not want to repeat things that have been said so many times in Committee and on Report but, having lost the amendment on primary carers earlier on during Report, I am very grateful to noble Lords for bringing forward these amendments, which will go a long way towards ensuring that we get the same outcomes. I am therefore wholeheartedly glad to support these amendments.
Lord Thomas of Cwmgiedd (CB)
I rise briefly to add my voice in support of the amendments. I accept that the Youth Justice Board has been an enormous success, and that is primarily because it addresses two separate problems to deal with youths. One is the causes and reasons why they offend and the other is the need for their rehabilitation into society. Although, for reasons that are necessary for the trial of youths, they need a separate system, the underlying reason for the Youth Justice Board applies equally to women, in that there are specific causes of offending, the particular vulnerability, the particular issues they have with mental capacity in certain areas, the specific crimes to which they have been subjected and, above all, domestic abuse.
Moreover, it is plain that the kind of rehabilitation that women need is different. They need much more support in integrating them into the community, but they also need not to be treated or dealt with at centres. I warmly welcome what the Ministry of Justice has done and set forth in its strategy. The difficulty is that although there have been numerous reports about what is required—the report of the noble Lord, Lord Farmer, for example, and the many reports of the Prison Reform Trust—what is needed is delivery. Delivery is key to this, and that is why I warmly support this amendment.
Lord Macdonald of River Glaven (CB)
My Lords, I too warmly support this amendment. Like most criminal lawyers, I have often visited women’s prisons and I must tell your Lordships that they are shattering and disturbing places. The sheer amount of human damage that one encounters in women’s prisons is very disturbing. My main reason for supporting this amendment as strongly as I do is precisely the delivery aspect to which my noble and learned friend Lord Thomas has just referred. Something has to be done to persuade the Government, and all of us, I suppose, to focus on the processes that are leading women—mostly damaged women, with children, who themselves are victims of serious crime—into these places. Without a way to focus on this as a public policy that can deliver some change, nothing will change. I strongly believe that the proposal in this amendment, if adopted by the Government, could lead to some desperately needed change.
Lord Pannick (CB)
My Lords, I too support this amendment. It seems to me that the case for the amendment is made plain by the functions of the proposed board, as set out in subsection (5). The functions include meeting the particular needs of women in the criminal justice system; monitoring the provision of services for women; obtaining information from relevant authorities; publishing information; identifying, making known and promoting good practice; commissioning research in connection with such practice; and providing assistance to local authorities and other associated purposes. Is the Minister really disputing that there is a vital need for all of that to be done, and by a body dedicated to that purpose?
Baroness Bennett of Manor Castle (GP)
My Lords, I was pleased to attach my name to these two amendments, and I thank the noble Lord, Lord Marks of Henley-on-Thames, for leading on them. The case has already been clearly made and I will not speak for long, given the hour, but it is worth looking back at the history of this. I looked it up and found a House of Lords Library note from 25 January 2008, referring to a debate drawing attention to the case for setting up a women’s justice board. In 2014, there was an amendment to the legal aid and sentencing Bill seeking to do the same thing. We are often accused of proposing novel ideas that, we are told, we need to go away and think about, but that argument simply does not apply in this case.
The noble Baroness, Lady Corston, produced an enormously important report well over a decade ago that made a huge number of recommendations, most of which have not been implemented. This really is another way, as several noble Lords, particularly the noble and learned Lord, Lord Thomas, have said, of getting at the problem of implementation. We have been talking about how the criminal justice system is failing women for a very long time, and it really is now time to take action. I will finish with a quote from Baroness Howe of Idlicote, who has now retired from your Lordships’ House. She said, back in 2008:
“I must say that I have become tired of seeing this matter brought to debate again and again”.—[Official Report, 31/1/08; col. 805.]
Surely it is time for action.
Baroness Chapman of Darlington (Lab)
My Lords, it is a pleasure to speak in this debate because I have been making speeches on this topic for 12 years. I believe, if memory serves, that I was the Front-Bench speaker in the other place who proposed the amendment to the LASPO Bill. It is quite extraordinary. I think it is now 22 years since this was first suggested and, as others have said, we have had the Corston report. We cannot have a debate on women in prison without reference to my noble friend Lady Corston—Jean Corston—and the work that she has done. The idea of a women’s justice board has been around for so long because it is such a good idea. There is so much evidence of the impact, and probably the savings, that it would make, should we take that path.
There is a long-accepted problem—and I know the Minister accepts that there is a problem—with the failure of the criminal justice system properly to address the needs of female offenders. This leads to poor reoffending rates and devastation for families, with children often bearing the brunt. The social and economic cost is enormous. Women make up only 4% of the prison population and are still too easily overlooked in policy, planning and investment decisions for the reasons that my noble friend Lady Kennedy outlined so well. Female offenders are different from male offenders: they have different health needs, including pregnancy, miscarriage, breastfeeding and menopause. We know that these issues are neglected, and we know the failure to tailor provision for women affects reoffending rates.
The frustration is that the Government agree with all this, yet they seem constantly to fail to move the dial. Unfortunately, according to the excellent work done by the Prison Reform Trust, fewer than half, I think, of the commitments made in the Government’s Female Offender Strategy, which was published in 2018, have been met so far. We know that community sentences can be more effective than short prison sentences, yet the use of community sentences is dropping—it has dropped by two-thirds since 2010. Community provision for women needs to be so much better, and the quality everywhere needs to improve. There are many excellent projects, but provision is way too patchy. One of the functions of a women’s justice board, like the Youth Justice Board, would be completely to transform that.
The Government’s Female Offender Strategy is not being delivered quickly enough. This leads many of us to conclude that a new lead organisation for female offenders would make the difference. Since my noble friend Lady Corston’s report, understanding of female offending has improved so much—this is a real positive—and the Government have played their part in this. I believe Ministers want to act and want female offending to improve. I hope the Minister is not just going to stand up and say “We are making progress—bear with us”, because we can all see that it is inadequate. Nothing that has been done so far is making a sufficient difference. Interventions in this space are too often short-term. They leave the fundamentals of substance misuse, mental health, housing, financial literacy and domestic violence unaddressed. We know that self-harm in women’s prisons has reached record levels. The situation is getting worse, not better. More than 20% of self-harm incidents involve women, with 12,000 incidents in 2020 compared to around 7,500 in 2016. A strategy is great, and we need a strategy, but we need leadership to ensure that delivery takes place. A women’s justice board would provide the strategic framework to identify and prioritise the specific needs of women within the criminal justice system.
Having been around this a few times now, the Government have previously argued that this can be achieved through ministerial working groups or strategies, and it could have been done, but the truth is that so far it has not. Many of us will have visited women’s prisons and seen what happens. One of the most upsetting things I have ever seen was when I was present for visits where women were interacting with their preschool children. The response of the women and the children was difficult for prison staff as well. That was an annual thing in that prison—once a year that happened. There is no central co-ordinating body able to identify best practice and make sure it happens everywhere. We fail on that because the Government do not have that central body. Women are going out; they are not making progress—reoffending is as bad as it has ever been. I feel we have come to a point where it is time to bite the bullet and accept the idea of a women’s justice board.
Lord Wolfson of Tredegar (Con)
My Lords, as noble Lords will be aware, we debated these amendments in Committee. At that time, they were withdrawn without a vote, although I acknowledge that, as the noble Lord, Lord Marks of Henley-on-Thames, fairly said, those who spoke in Committee overwhelmingly supported the amendment.
I have of course listened very carefully to the various speeches and points made around the House this evening. I think it is fair to say that the arguments in support can perhaps be distilled in four points. I set them out not to make the case against me stronger but perhaps at least to reassure the House that I have understood it. First, the Youth Justice board model has been a success in reducing the number of children entering the youth justice system or custody and, therefore, it is an appropriate model to follow as the needs of women are distinct. Secondly, sometimes their needs are similar, for different reasons, to the needs of children. Thirdly, women are often victims as well as offenders and largely commit non-violent and low-level crime. Fourthly, a women’s justice board would provide the effective leadership and drive to address the particular needs of women in the criminal justice system and divert them before they come into contact with that system by preventing offending in the first place. The House should therefore be reassured that the Government and I have understood and considered carefully the case. As the noble Lord, Lord Marks, said, we have had a number of very helpful discussions about it.
The Government recognise that women who are in or at risk of contact with the criminal justice system have distinct needs that require a distinct approach, and we have acted in a practical sense on that recognition. We published the Female Offender Strategy, which sets out a comprehensive programme of work to respond to those needs, and we remain committed to its delivery. The Advisory Board on Female Offenders provides external and independent oversight of the strategy, but my ministerial colleague in the other place, Minister Atkins, has also asked officials to review the wider governance arrangements for the strategy to ensure that they are fully fit for purpose to support the work across government which is vital to deliver the strategy.
I explained in Committee why the Government are not persuaded that the Youth Justice Board is the right model for addressing the needs of women. To take up the point made by the noble Lord, Lord Ramsbotham, and others, I again underline that I agree and accept that the Youth Justice Board has done extremely good work in its area. There is a short point here, but I suggest it is very important. We have a separate youth justice system. The Youth Justice Board is a reflection of that different system. It is a specialised justice board for a specialised and separate justice system. That is not just to make the physical point that children are still maturing, so the justice system applies to them differently. It is to make the point that the youth justice system is significantly different from the adult justice system in a number of respects.
Let me set out a number of them. First, with youth justice, there is a statutory aim
“to prevent offending by children and young persons”.
That is from the Crime and Disorder Act 1998. There is a greater focus on prevention and diversion. Custody is used as a last resort, as it is in the adult system, but there is greater focus in the youth justice system because there are separate community services provided by youth offending teams, which are part of local authorities. There is a separate youth court with specially trained magistrates with different sentencing powers. There is a separate sentencing framework for children that does not apply to adults. Of course, there is also an entirely separate custodial estate, which is managed in an entirely different way.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the Minister for that response. I am reassured by the fact that he says that he understands the case, of course, but I am not reassured by the logic that drives him still to oppose these amendments.
I did not hear in what he said anything that answers the unanimous speeches around the House, which made two important points. The first is that women’s needs are different and special. As I said in my opening speech, that does not seem to me to be answered by the fact that there are different justice systems applicable to youths and to women. The second point is that this is about delivery. It is not just about a philosophy that says that we recognise those needs, or even that we identify them; it is about addressing those needs and bringing some drive to that effort. Those points were made powerfully by the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Macdonald of River Glaven, and many others. The question put to the Minister by the noble Lord, Lord Pannick, as to what it is that the Government do not want delivered, was not answered by the Minister saying that the Government want to see this delivered, unless they are prepared to do something to achieve that delivery.
I am grateful for the support of the noble Baroness, Lady Chapman, whose speech can perhaps be summarised by her question: so far, has it been done? The answer is no. Delivery has not been achieved. We believe—the speeches from around the House show that noble Lords also believe this—that a women’s justice board is needed to achieve that delivery. For that reason, and in the hope that sufficient Members from the noble Baroness’s party will support her and us on this issue, I wish to test the opinion of the House.
Lord Blencathra
“Sex-specific incarceration for offenders
(1) Where a person who has undergone gender reassignment is serving a custodial sentence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(2) Where a person who has undergone gender reassignment is remanded in custody on suspicion of committing an offence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(3) Where the case-by-case assessment of a prisoner who has undergone gender reassignment determines that the prisoner should not be accommodated with prisoners of the same sex as registered at birth, separate accommodation must be provided to ensure that there is no access to or association with prisoners of the opposite sex as registered at birth.(4) This section applies whether or not the person has a gender recognition certificate.(5) Within 12 months of the passing of this Act the Secretary of State must ensure accommodation is available for the purposes of this section.”Member’s explanatory statement
This amendment would provide that all prisoners should live in accommodation provided in consideration of both their sex registered at birth and their gender identity. Prisoners with the protected characteristic of gender reassignment will ordinarily be housed according to their sex as registered at birth. On a case-by-case basis, prisoners may be allocated to a specialist transgender unit, with no contact with prisoners whose sex registered at birth was the opposite of their own.
Lord Blencathra (Con)
My Lords, this is my new amendment, Amendment 97ZA. I accept that my original amendment in Committee was unbalanced. I sought to protect female offenders but neglected to account for the small minority of trans women who might face unacceptable risk if housed in male prisons. My new amendment aims to afford appropriate protection to all prisoners, notwithstanding that there can be no guarantee that every prisoner will be entirely protected from risk, even within their own single-sex units. I thank my noble friend Lord Wolfson for our meetings, for the teach-in he organised and for our ongoing discussions.
Your Lordships may ask why I have brought back an amendment. The answer is that this is an important issue in its own right. The needs of women in prison matter, and these needs mandate single-sex provision. Women in prison are acknowledged to be an exceptionally vulnerable group and cannot simply choose to use a different space which remains single-sex. These reasons were discussed in the previous debate and I shall not repeat them. But this is also representative of the wider issue: the ability of legislation to maintain single-sex spaces for women. The female estate is a definitive example of a space that should be single-sex. If women in prison cannot be guaranteed single-sex spaces, no woman or girl can. Hospital wards, changing rooms, rape crisis centres, refuges and toilets in schools—I am talking about anywhere where women and girls, for reasons of dignity, privacy and safety, require single-sex spaces. I simply say this to my noble friend: if legislation is insufficient at the moment to secure single-sex provision for women in prison, all females in this country are left vulnerable.
Since my previous amendment, I have received a great many letters, from both men and women. An amendment to secure the rights of women in prison to single-sex spaces has wide support across a cross-section of the general public. Media coverage continually indicates that the general public support single-sex spaces for women and girls. Most recently, the article in the Times last week by my honourable friend Jackie Doyle-Price MP called for women’s prisons to become single-sex once more. Quite rightly, people see this as an important issue in its own right but they recognise that it is representative of the wider issue. This amendment matters not just to women in prison but for all women and girls.
The strength of evidence indicates that male and female prisoners should be housed separately. This is normal international practice, including in our own prison rules. When the policies that permit some trans women prisoners, who are of course of the male sex, to be housed alongside women in the female estate were put in place few years ago, this was essentially a live experiment. It was not grounded in data: no data demonstrated the acceptability of the impact on women in prison and on the operation of the female estate. In fact, research recently conducted on behalf of the Scottish Prison Service demonstrates that female offenders are negatively impacted when they are housed with trans women prisoners. This is notwithstanding the MoJ assertions that operational staff perceive that the policies are working well. I am pleased that the Ministry of Justice has committed to exploring opportunities for research in this area.
It was also clear from the teach-in that the MoJ believes that the ability to act differently from the current policies is constrained by current legislation. I shall not argue on this point. But if real change is to be affected, legislative change is or may be necessary. The purpose of the Gender Recognition Act was to legally recognise the “acquired gender” of transsexual people in specific sets of circumstances, in line with a judgment of the European Court of Human Rights. The GRA contains supplementary provisions in Sections 23 and 24 that empower the Secretary of State to modify the effect of a gender recognition certificate by order. The Explanatory Notes to the GRA acknowledge the possibility that, at the time of passing the GRA, there were circumstances where its unintended consequences for people might not have been realised. I suggest that the allocation of trans women prisoners with a GRC to the female estate is one such situation, and that legislation to exclude these prisoners from the female prison estate on the basis of their sex—not their gender reassignment—is both possible and warranted.
The intention of the GRA was not to render the provision of separate-sex and single-sex services for females an impossibility, to replace sex with gender or to deny the sex differences between men and women. Neither was the inclusion of gender reassignment protection as a separate protected characteristic in the Equality Act 2010. The undesirability of that should be self-evident.
A variety of concerns in respect of the previous amendment were raised by noble Lords and at the teach-in we had. These related to the vulnerability of trans women and their safety, the ability of trans women to live in their acquired gender, and the undesirability of housing trans women prisoners far from their families.
No one wishes to place any prisoner at unacceptable risk of harm. Vulnerability exists throughout the male estate, and, although female offenders characteristically exhibit particular vulnerabilities, this does not exclude the possibility that the vulnerability of some male prisoners, including trans women, may be equally high. The question for all of us is how to keep trans women safe, and that is very important. However, that is wholly separate to the question: who has the legitimate entitlement to be housed in the female estate? I accept that, for some trans women, allocation to the male estate will not be appropriate and should not happen. My revised amendment means that Her Majesty’s Prison Service will be able to assess trans women on a case-by-case basis and make decisions concerning allocation in consideration of all known risks. The wishes of the individual prisoner can be considered, as in the present policy concerning transgender prisoners.
Where a prisoner cannot be housed safely in either the general population of the male estate or with other males in a vulnerable prisoners unit, the decision can be made to house that prisoner in a specialist transgender unit. This will ensure their safety from male prisoners. Access to or association with female prisoners would not be possible. But access to women in prison is not needed to keep these prisoners safe; it is removing them from the presence of men that is required to keep them safe—not putting them in a women’s prison. I note that the MoJ states that 94% of trans women are housed in the male estate. This means that the safety of the overwhelming majority of trans women can be met in men’s prisons.
At the teach-in, the Ministry of Justice indicated that trans women may obtain a GRC while housed in the male estate. It would seem that this means that they are able to satisfy the requirement of “living as a woman” for a period of two years to the satisfaction of the gender recognition panel. The overwhelming majority of trans women are housed in the male estate, meaning that their needs as women and their rights to live as their acquired gender can be met in men’s prisons. Certainly, specialist transgender units for women, which I advocate, should be run according to the female regime and provide a canteen for female prisons.
A concern was also raised that dedicated transgender units would leave trans women far from their families. This is not an issue that affects only trans women. A 2016 Her Majesty’s Inspectorate of Prisons report found that distance from family was a common barrier to visits throughout the prison estate. Women are particularly affected. There are around 10 times the number of men’s prisons in England and Wales than women’s prisons, and female offenders are more likely to be held at a distance from their families than men. A 2019 report stated that women are typically held at distances over 20% further away from their families than men. Some women are held at considerable distances from their families: as there is no female prison in Wales, women may be held over 150 miles from home.
Prisoner allocation to specialist units may be take place, even though this results in increased distance from family. Allocation of trans women to E Wing at Downview is an example. Trans women prisoners who find themselves housed far from family should be assisted. Financial help is already available from the assisted prison visits unit to facilitate visits from close relatives and partners of prisoners who are on low incomes.
I propose expanding this provision for trans women who are held far from family. The number of trans women prisoners currently held in the female estate is very small, suggesting that the number who may be held on specialist transgender units would also be very small. The additional financial cost would therefore be modest.
The transgender prison population is growing. Data released by the MoJ at the end of last year indicate a 20% increase in the population of transgender prisoners since 2019. Their needs in prison will become more pressing. The commitment to building new estate, as outlined in the prisons White Paper, provides the opportunity to provide that transgender prisoners are properly and appropriately accommodated. New secure units can be tailored to their needs and vulnerabilities. These needs and the operation of specialist transgender units should be a focal point for the so-called future regime design, with outcome frameworks to reflect this.
Lord Cormack (Con)
My Lords, I was very glad to add my name to my noble friend Lord Blencathra’s amendment, which he has moved with a convincing and passionate speech. I agree wholeheartedly with all that he said. My own views were reinforced in the last debate when the noble Lord, Lord Macdonald of River Glaven, talked in rather chilling terms about his visits to women’s prisons; I have heard similar accounts from others, both within your Lordships’ House and outside. It seems to me that we add to the uncertainty, mental tension, fear and all those other things if we house in women’s prisons those who are physically male but proclaim themselves female.
Of course, the safety of a prisoner, no matter their sex, is important to us all—a point that some of us touched on in Committee. I put forward then a suggestion that perhaps these people should be separately treated and looked after. After all, the aim of prison—I had two prisons in my former constituency—is often lost sight of: sending to prison is the punishment and rehabilitation is the aim. You are much more likely to get rehabilitation if the atmosphere is calm and subdued and there is not rampant fear in the prison. I believe very strongly, as does my noble friend Lord Blencathra, that the solution is to treat those who are particularly vulnerable in such a way that we take as many safeguards against their vulnerability as possible. To me, that leads logically to a solution where those who were born as women, and who are women, are in women’s prisons, and those who are still physically male are, if necessary, housed in a separate unit.
I do not buy, any more than does my noble friend Lord Blencathra, the talk of travelling great distances. Of course the aim should always be to try to have prisoners as close as possible to their loved ones and the community that they know, but it is not always possible. My noble friend Lord Blencathra referred to the fact that there is no women’s prison in Wales, and so a woman sentenced to jail there can be sent 150 or more miles away. We also have to remember that people are sent to prison because they have done something detrimental to society. It may be a heinous crime or not such a heinous crime, but having to travel a certain distance may be part of the price one has to pay.
I am a great believer in community restorative justice. I believe that we send far too many people, both male and female, to prison, and that we should be much more adventurous in the way we treat those who are not, by their physical violence, an obvious danger to society; of course, they must be securely housed, wherever and whoever they are.
I am grateful to my noble friend the Minister. I attended the teach-in on Zoom—it would have been much better if only we could all have sat down together, but it was on Zoom. I do not doubt for a moment my noble friend’s passionate commitment, but I had to say to him on the day that I was wholly unconvinced; I think he respected that.
I believe that we have to grasp this problem. Like my noble friend Lord Blencathra, I had dozens of letters and messages from those who had listened to the debate —it is remarkable how many people suffer from insomnia in this country—and who wanted to say thank you for standing up for womanhood and motherhood and for not making women feel disparaged. We went through this last year, when we had the extraordinary maternity Bill to, quite reasonably, give maternity leave to the Attorney-General. As a Bill designed to give maternity leave, it did not mention the words “woman” or “mother” until it had left your Lordships’ House, where we talked a little sense into it.
This is something that we have to grasp as a society. I believe that it is totally wrong to put women in a threatened position by having housed next to them people who are still physically male. Protect them all, yes, but, in particular, let us have regard for the women. I believe that the amendment put before us by my noble friend Lord Blencathra this evening is worthy of your Lordships’ support. If it does not receive that support tonight, this is an issue that will not go away; it is a series of big accidents waiting to happen if we are not careful. I am glad to support my noble friend’s amendment.
Lord Pannick (CB)
My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.
I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.
Lord Hope of Craighead (CB)
My Lords, I warmly support what my noble friend Lord Pannick has just said. It is a great mistake, certainly at this stage in our affairs, to attempt to legislate in this matter. It may be that the prison estate will be big enough in years to come so that one can segregate by gender reassignment in special prisons of their own, but we are nowhere near that at the moment and the proper way to deal with this is to rely on the discretion that exists at present.
It is quite striking if you look at the wording of the amendment—it makes no distinction between whether we are talking about male or female prisoners, but very different situations arise depending on which of these two characteristics you are considering. It makes no distinction for the time that the person may have lived in that new assignment. It makes no distinction, either, for the extent of the surgery and the appearance of the person over time as the reassignment process takes place.
It is very difficult for those of us who, I assume, have not faced this to appreciate the intense emotional problem that people who believe that they have been born into the wrong sex undergo. It is a very emotional matter, fighting against characteristics you have acquired that you do not believe belong to you. The way you deal with it is to believe that you are actually of the sex—of the gender, I should say—that you think you should have been. That involves not only reconstruction of the body but a mentality designed entirely to live the new life, which you believe is the one you should have been given. It strikes me as very cruel, if I may use that expression, to treat these people as if they had not reassigned themselves. It is not a choice. They are driven by the characteristics they acquired which forced them into their decision.
I make these points just to emphasise that we are dealing here with a very difficult problem. The offender requires as much consideration on the grounds of safety and emotional distress as the people around them in the prison in which they are placed. Legislation is not the way to go, certainly not at the moment. I personally have complete confidence in the way that the prison authorities are dealing with this very difficult problem at the moment.
Baroness Fox of Buckley (Non-Afl)
My Lords, I welcome this amendment and I commend the noble Lord, Lord Blencathra, in particular, for doggedly sticking with this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for organising the MoJ teach-in, which I found very interesting and useful. I learned a lot and I listened hard.
I thought this amendment was a nuanced and sensitive way of dealing with all the objections raised by the MoJ at that teach-in, so I am rather disappointed that the Government have not accepted the proposal from the noble Lord, Lord Blencathra, which is a bespoke amendment that protects women’s single-sex spaces while sympathetically and practically managing any challenges faced by transwomen prisoners.
The amendment might be a modest proposal—I think it is—but noble Lords may be interested to hear that it has created a huge amount of interest outside this place over the last couple of days. People on Twitter might look at #KeepPrisonsSingleSex. It has been trending for the last 36 hours. Do look because the messages on there are what I am talking about, rather than the fact that it is trending.
I want to read a few tweets that could maybe help us understand why this amendment matters. One woman said:
“I find it quite baffling that this is even up for discussion! How did we get to the point where we need a debate to include legislation to prevent something so damaging to women?”
Another said:
“Women in UK prisons must not be locked in with convicted male criminals. This is an appalling failure of the duty of care the state has for female prisoners. Female prison staff must not be forced to search male prisoners. Let’s hope the House of Lords shows sense.”
I would like to think the House of Lords would as well, but maybe not. The final one I want to read out says:
“I’ve been to prison and I’m telling you now that for some women it’s their only safe space, due to abuse on the outside. Allowing anyone who claims to feel like a woman to be put in that safe space is wrong! Women, criminal or not deserve to feel safe.”
I say hear, hear to that.
Lord Cashman (Non-Afl)
My Lords, I rise to speak against this amendment. We should remind ourselves that when we talk about trans women and trans men, we are talking about men and women who have faced very difficult choices about their identity and whom they believe themselves to be. Once they face that choice and make the decision, the transition is a very lengthy process and, again, it is not undertaken lightly because, as we have heard, so often it leads to gender reassignment.
I occasionally go on Twitter. I have read the tweets and received messages from people who, in relation to what we are discussing tonight, have said that if they thought that they were going to prison as a trans woman or a trans man, they would rather commit suicide than face what they believe would be inhumane treatment within the United Kingdom Prison Service. We have to deal with these fears. We are being asked to deal with fears on both sides of this argument, and I want us to deal with both equally. The balancing of rights always poses for us the greatest problem, but I believe that the Ministry of Justice, in its policy on assessing trans prisoners, has got it absolutely right.
It is late and we have other important work to do, so I will begin to wind up. But I wish to associate myself wholeheartedly with the comments of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. I could go through the policy section by section stating why I believe it is right. I am not going to do that, but if your Lordships wished to return to it, I would do so.
I will finish with these reflections. This amendment, even though it has been placed in good faith and, as the mover said, with good intention, deeply concerns me because it perpetrates the stereotype of trans women and trans men as sexual predators—as a threat to other women, and trans men as a threat to the wider society. It also, as was said in debate on the previous amendment, creates further inequalities; it does not reduce them.
Baroness Meyer (Con)
My Lords, I support this amendment, and the first thing I want to say is that we are talking only about men who have not transitioned to women, which is quite different.
Although we have come a long way since the 2007 Corston report to improve conditions for women in prisons, we are now failing them. Indeed, something has recently gone badly wrong. Women prisoners have a right to the security of a single-sex space. By definition, women are deprived of this security if men are admitted to their prison, including trans women prisoners of male sex, whether or not they have the benefit of a GRC. By the same token, a women’s prison is no place for vulnerable at-risk males. Prison policy must provide for the protection of everybody, and this amendment makes that clear.
How then have we allowed prison policy to be captured by a concern for the protection of trans prisoners at the cost of imprisoned women’s most fundamental rights? There is no balance or fairness in that. The answer of course is that government departments have allowed themselves to be influenced, even intimidated, by noisy and modish pressure groups, whose wilful ignorance of basic science has all the features of a cult.
I have never visited or been to a prison, but as a woman I can imagine how it must be to be incarcerated and threatened. On this note, I very much support this amendment and thank my noble friends Lord Blencathra, Lord Farmer and Lord Cormack for tabling it.
Lord Faulks (Non-Afl)
My Lords, I have visited a number of prisons, both women’s prisons and male prisons. I have also sat where the noble Lord, Lord Wolfson, sits and answered a number of difficult questions about where you house those who have transitioned, or purport to transition, usually from the male gender to the female gender. It is an incredibly difficult task that the Ministry has to perform, and it requires assessment and nuance. As a young barrister, I had the privilege of representing April Ashley, a pioneer in this field who died about three weeks ago. She changed from a man to a woman after pioneering surgery in north Africa and had lived successfully as a woman for 30 years when she was arrested by the police and thrown into a male jail. She was philosophical about the unfair charge, but less philosophical about the desperately inconsiderate approach that was shown by the police.
Lord Farmer (Con)
My Lords, one of the main reasons I put my name again to this revised amendment in the name of my noble friend Lord Blencathra is that I was not persuaded by the Minister’s assurances in Committee that risks are properly balanced before a trans woman is housed in the female prison estate.
First, I heard no mention of the consideration not just of physical harm coming to female prisoners but of the risks of introducing high levels of fear and anxiety by accepting male-bodied female-identifying persons into the prison. More than half of female prisoners have experienced domestic violence—we have already heard that this evening in the previous debate—the vast majority of which will surely have been at the hands of men. A case board investigating the risk that a trans woman presents will not be looking through the filter of trauma, abuse and male exploitation that many imprisoned women apply to their surroundings. I undertook several prison visits for my MoJ-commissioned review of the female estate. As was typical, I questioned a panel of prisoners. On one visit, the de facto leader, who dominated the proceedings, was obviously male and not attempting to pass as a woman. This transgender prisoner might not have been exerting sexually charged and motivated power, but there was a palpable imbalance all the same.
Secondly, Ministry of Justice policy is not in step, as we have heard this evening, with public opinion. A poll conducted by Women for Women UK found that, when respondents were asked whether intact male-bodied trans women should be housed in a women’s prison, support slumped to net disapproval of minus 20%. Contrary to public perception, the overwhelming majority of male-born transgender people retain their penis and are fully male bodied. Moreover, a 2016 meta-analysis established that less than 3% of the transgender population is undergoing any gender-affirming surgical or hormonal treatment, with the remaining 97% simply self-identifying with no modifications to their natal sex body at all.
The noble Lord, Lord Pannick, made an argument about the trans woman prisoner whom these policies are designed to protect, who may have been living in their acquired gender for many years, have had full reassignment surgery and treatment, pass perfectly as a woman and have been convicted of a minor non-violent offence, and said that to refuse to house this prisoner in the female estate would be wholly unjustified. But the statistics I have just given, and my own understanding and albeit limited experience of transgender prisoners housed in women’s prisons, lead me to ask: is this description really characteristic of the population of trans women prisoners, including those held in the female estate? This example of a transgender prisoner seems divorced from reality and from the prisoners with whom female offenders are forced to contend on a daily basis. It is perplexing why prison policy is formulated to account for a situation that may never transpire, exposing female offenders to prisoners who are very far removed from that hypothetical.
Rhona Hotchkiss, a prison governor from Scotland who, as deputy in a men’s prison, initially pushed for trans women to be housed in the female estate, became deeply concerned at how this practice played out when she became governor of Cornton Vale. A prisoner transferred from the male estate when they identified as a woman then reidentified as a man after a short time in Cornton Vale. Frustrated by the delay while the Scottish Prison Service deliberated, the prisoner threatened to rape other prisoners and staff. Hotchkiss was deeply shaken, thinking: “What woman threatens to rape other people”—a crime for which a penis is required—and “Why should we take people’s word for this? We don’t for anything else”. This to me strikes at the heart of the issue: we are giving the benefit of the doubt to people who identify as women yet have all their male hormones and physicality intact. We are giving them access to female spaces despite the benefits to and rights of women to have sex-specific prisons.
This amendment has broader implications. It speaks to the necessity of upholding the fundamental rights and freedoms of women and girls on the basis of sex, not gender, as recognised in UK and international law. This is not simply a disagreement between the Government and those of us who have spoken to the amendment. It is a difference in point of principle between the Government and large swathes of the electorate, as polling indicates. Gender does not take precedence over sex. Males do not take precedence over females. The protected characteristic of gender reassignment does not take precedence over the protected characteristic of sex.
To summarise: in the prison context, male hormones and a male sex organ surely present considerable risk to vulnerable women, for the varied reasons I have given above, which include perceived threat to mental safety and actual threat of domination and exploitation, not just the objective risk of physical and sexual harm. I support my noble friend’s amendment.
Baroness Falkner of Margravine (CB)
My Lords, I refer to my interests in the register and want to make it clear that I am not expressing any opinion on the merits of this particular amendment. But, because the debate has ranged far and wide beyond the amendment, and because there appears to be some misunderstanding in the House as to what the amendment is, I hope that, when the noble Lord stands to speak to this amendment, he will clarify two important factors.
I wonder whether he would tell the House whether housing a trans woman holding a gender recognition certificate on the male estate would be unlawful, as that woman is legally a woman. That is quite an important distinction, and it has not come out. There is clearly a misunderstanding there. The second point I would like him to clarify is whether housing a trans woman on a male estate, or a trans man on a women’s estate, could be unlawful as it could amount to discrimination.
Lord Berkeley of Knighton (CB)
My Lords, perhaps I might amplify, somewhat more bluntly, the points made by my two noble friends, and indeed the noble Lords, Lord Faulks and Lord Cashman. I have been to prisons as a member of the Koestler Trust, trying to take arts in there, and one of the things that struck me—and in a way the arts were a release for this—was the fevered testosterone. We have heard about it from both sides. I ask noble Lords to imagine, just for one moment, what would happen to somebody incarcerated in a male prison who already appears—if I may use the word—effeminate, and who may moreover have been sexually adapted to being a woman. I cannot even begin to think how that person would be targeted in a male prison. We need to think very carefully about that, whatever the merits of the amendment moved by the noble Lord, Lord Blencathra.
Lord Herbert of South Downs (Con)
My Lords, I draw attention to my interests as declared in the register. I find myself somewhat perplexed by this debate and the amendment. My noble friend Lady Meyer said that we were talking only about men who had not transitioned—but I do not think that the amendment says that. It is clear in referring to
“a person who has undergone gender reassignment”.
So there appears to be some misunderstanding about what the effect of the amendment would be, and I wonder what the problem is that we are trying to fix. After all, my noble friend Lord Blencathra himself said that the number of transgender women in the women-only estate was “very small”.
We know that in practice the vast majority of transgender prisoners are already held in prisons which match their sex registered at birth. The small number who are not held in such places have been risk-assessed. As the noble Lord, Lord Pannick, pointed out, that risk assessment would count for nothing in relation to transgender women because the effect of this amendment would be to say that there are no circumstances, irrespective of risk, in which such women, who may have been women for some time, may be held in the women-only estate.
It does not matter that the authorities believe that they pose no risk whatever. It does not matter that the numbers that we are talking about are actually very low. What matters to those who tabled this amendment is that the law should say that they should never be held in such a wing. That is in principle wrong.
It seems to be the sense of the whole House that people should be held according to the appropriate accommodation after a risk assessment. That might well mean that trans women are not held in the women-only estate. It might well mean that trans men are not held in the male-only estate, but that it is better that there is a risk assessment and they are held in the appropriate place.
The effect of this amendment is to prescribe, because those who tabled it think they know better. That, in the end, is the decision that we are confronted with. It is a decision about whether we are to be guided by ideology or pragmatism and, I would suggest, compassion.
It was said in advancing this amendment that a reason to accept it is that, absent it being passed, no places could be safe for women, not just in prison, but beyond the prison estate. How can that be? How could this amendment, were we to pass it, suddenly make all other places for women safe? It was also said—
Baroness Fox of Buckley (Non-Afl)
I wanted to clarify whether, if the proposal has an impact on prisons, what impact it might have on all women. What is at issue is the protection of single-sex facilities—places that are only single sex. That is a very important principle—no matter how small the numbers are in this instance—about which there is concern. I am clarifying why people say that, and not just in this House—this is a widespread concern.
Lord Herbert of South Downs (Con)
I am grateful to the noble Baroness. I think we can agree that it is important that women should be safe. The Equality Act provides exemptions in a number of scenarios, including in relation to women-only spaces outside the prison estate to ensure that. It allows the prison authorities to make the right judgments about where it is appropriate to place people. The safety of people is put first, and so it should be.
It has been suggested that a reason to pass this amendment is because of the media coverage that this debate has excited, and that outside this place there is a tremendous wave of anger we need to pay attention to. Of course, if people’s fears are provoked and if media campaigns suggest that women cannot be safe, there will be such fervent outrage, but that is not a reason for us to depart from the facts. The facts do not lend support to this approach, which places ideology above pragmatism. I therefore urge the Government not to accept this amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I really did not want to speak today, because, whatever I say, I am going to get abuse, but I have been incensed by some of contributions. I point out, in an absolutely non-specific way, that the majority of speakers have been male, and they have spoken against the amendment. Two women have spoken for the amendment, because they perceive there is a problem. My party’s policy is that trans men are men and trans women are women, and I do not have a problem with that, but there are occasions when women in women’s prisons experience sexual predation by men who have falsely self-identified as women. The noble Lord, Lord Cashman, said that we are saying that all trans women are sexual predators. We are not saying that—of course not.
Will the Minister clarify whether trans men go to male prisons? My understanding is that they do not, because they would not be safe. What we are talking about here is keeping people safe. Vulnerable people of all kinds, whatever trans identity or sexual identity they have, should be kept safe. Clearly, prisons are the worst possible places to keep people safe; they are a nightmare. This Government are increasing the number of prisons. They are not trying to reduce the prison population and make our prisons safer; they are adding to the problem. Do trans men go to male prisons? Have there been cases where men have falsely self-identified as women and predated sexually on women? I have had emails and letters from women who have been abused by men who have falsely self-identified as women. What can we say to those women? We cannot say, “This is an ideology and we’re trying to look good”; we have to be serious about people who are abused, whether they are male or female, or trans men or trans women.
I would not vote for this amendment, because it is too hardline. I accept the issue of safe accommodation—that seems very sensible; I do not see it as demeaning at all. Prisons are demeaning; safe accommodation sounds very safe to me.
Only men in this debate have spoken against the amendment. Why do men think that is okay? I do not understand. They are ignoring the fact that some women are predated upon. Sometimes those women may not be telling the truth—I have no idea, but I rather suspect that they are. Please can we just think about the vulnerable people and stop being so ultra-sensitive and supposing that we are all getting at everybody. I am absolutely fed up with this debate, and I hope this is the last speech.
Baroness Barker (LD)
My Lords, it will not be, because this woman disagrees with this amendment. I speak as a woman who cares deeply about the physical safety of women. One of the things I find most objectionable about the campaign which has been run in the media for the past couple of years is the assumption that those of us who are women and who stand as allies with trans people do not care, because I do not believe that is the case at all.
It would be very tempting at this stage to answer some of the wide-ranging points which have been made about, for example, polls with leading questions, misinterpretations and mis-statements of the law, but I shall not do that. I shall simply stick to the facts that this House should look at when it comes to a decision on this matter.
The noble Lord, Lord Blencathra, spoke about an entitlement of prisoners to go to an estate. There is no such entitlement. The noble Baroness, Lady Jones, talked about instances where self-identifying male prisoners had predated on women. That has happened, but my understanding is that it has not happened since the implementation of the policy which has been operational in the Prison Service since 2016 and was updated in 2019.
There are historical cases, which are trotted out all the time by people who wish to disparage trans people. Let us be absolutely clear what the current policy that is operated in our prisons is:
“A proper assessment of risk is paramount in the management of all individuals subject to custodial and community sentences. The management of individuals who are transgender, particularly in custodial and AP settings, must seek to protect both the welfare and rights of the individual, and the welfare and rights of others in custody around them. These two risks must be considered fully and balanced against each other … Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody”.
My understanding, from talking to prison officials, is that not only is there no entitlement for a prisoner to be held in an estate, but that the risk assessment includes an assessment of whether somebody is attempting to be transferred into an estate in order to perpetrate further crimes. If they are, it is held as a contra-indication.
I agree absolutely with the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. What we have now is a policy, as the noble Baroness, Lady Falkner, said, that does protect to the full the human rights of individuals, but also balances them with the safety of everybody—that includes the staff in prisons as well; let us not forget them. The noble Lord, Lord Blencathra, is therefore putting to us an amendment that is not based on evidence and is a retrograde step. I urge noble Lords to reject it.
Lord Paddick (LD)
My Lords, I do not intend to repeat the arguments that other noble Lords have made and those that I made in Committee; they are in the official record. Existing legislation and procedures, properly applied, are sufficient to ensure the safety and well-being of all prisoners and staff in our prisons in relation to transgender prisoners. I am sure that the noble Lord the Minister will confirm that.
Because I have said, in answer to a suggestion on Twitter, that I felt that the existing risk-based approach was best, I was sent a direct message on Facebook from somebody I have never heard from before saying, “Leave women’s rights alone you nasty little misogynist. We see you loud and clear. Trans rights simply means male rights. Enjoy your irrelevance MRA bigot”. Whatever MRA stands for, I have no idea. Of course, as the noble Baroness, Lady Fox of Buckley, has said, we need to consider the rights of women—of course we do—but transgender people also have rights, and their rights need to be balanced. The best way to do so is on a case-by-case basis.
The noble Baroness, Lady Meyer, and the noble Lords, Lord Cormack and Lord Farmer, talked extensively about transgender people who had not undergone gender reassignment surgery, or transgender women who are still physically men. There is nothing at all in this amendment about the physical state of transgender people; it applies in a blanket manner to every single transgender person. The fact is that every prisoner entering the prison estate is risk-assessed to ensure that they are not a threat to themselves or others, and they are then housed or segregated on that basis. If that assessment has been wrong on rare occasions in the past, the problem was not with the system, let alone with the law; it was a problem with implementation. I understand, however—and I am sure that the Minister will confirm—that that is no longer a problem. This amendment is not necessary and we oppose it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too will be relatively brief. This debate is about balancing rights and balancing vulnerabilities, and I have been following it over months if not years. Unfortunately, I did not go to the teach-in organised by the noble Lord, Lord Wolfson. However, I have been to other events on Zoom where I have spoken to prison officers and the people involved in managing the situations discussed here. It is apparent to me that there has been an evolution in the prison officers’ and governors’ approaches. I have spoken to a number of them several times. I spoke to one women’s prison where transgender units operated for a period, and the way they were operated was later changed. I have to say the governors I spoke to seemed—I do not want to use the word “relaxed”—to think that they could manage the situation. That is what I was told, and I have every reason to believe in their professionalism in dealing with an evolving situation—as we have heard from noble Lords, there is an increase in trans prisoners; the figure of 20% since 2019 was mentioned.
I have visited quite a few prisons over the last 10 years and I am always impressed by the quality of the prison staff, the governors and the prison officers. The basis of my view is that I trust them to make the right decisions. I think they are dealing with very difficult circumstances and I think that they can manage risk. As the noble Baroness, Lady Barker, said, they have policies which have evolved over a period, which include the safety of the prisoners and the staff. I was pleased to hear that during the teach-in the Minister said that he is willing to support further research into this matter. It is an evolving situation, but for my part I am content that the current complex case boards that make these difficult decisions should continue to do their work.
Lord Wolfson of Tredegar (Con)
My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.
I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.
I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.
Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.
We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.
Lord Blencathra (Con)
My Lords, it is normal to say when winding up that it has been an interesting debate. This one has certainly provoked more interest than I had anticipated. I thank my noble friends Lord Cormack, Lord Farmer and Lady Meyer, and the noble Baronesses, Lady Fox and Lady Jones, for their contributions.
I start with the contribution from my noble friend Lord Herbert. I do not do anti-social media—things like Twitter and so on. I am not motivated to move this out of ideology, nor because of what the media say; I am motivated to do it because I have been approached by women in prison who, rightly or wrongly, are afraid for their safety. It is right to say that it is only a small number of trans women in prisons but there are a large number of women who are afraid of them. They may be wrong to be afraid, but it is in their interests that I am working to try to make sure that they no longer have that fear.
The noble Lord, Lord Pannick, said that my amendment would mean that transgender prisoners should either be stuffed into the male estate or put into some ghastly specially segregated facility. He made it sound like something the apartheid regime would invent. That is exactly the current MoJ policy: all transgender prisoners coming into the prison estate start off in the male estate. I am not inventing that; it is the current policy, as my noble friend has said. Some 90% of trans women prisoners stay in the male estate and then some are moved to the women’s estate. They are moved to a specially segregated facility called E wing at Downview. I merely suggest in my amendment that the facilities of E wing at Downview should be extended to house more transgender prisoners.
I think the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Pannick, are acting under the impression that the vast majority of these prisoners have spent a long part of their life as trans women—that they have had hormone replacement therapy, have had operations and have been living as women for years. That is not the case; as we have seen from Scotland, only one in 12 has. We do not have the figures for England because, understandably, they are confidential, but the anecdotal evidence is that there is no one in our prisons in England with a GRC who has gone through that process, so they are not those who have lived their lives as women for 20 or 30 years.
I say to the noble and learned Lord, Lord Hope, that, if the Government were to go down my route, I perfectly well accept that a system could be built in where someone who has had hormone replacement therapy, has had surgery and has been living as a woman for X number of years may qualify on a risk-assessment basis to classify as a woman, not in biological terms but in terms of being sent to prison.
I say to the noble Lord, Lord Cashman, that it is quite wrong to categorise this amendment as stigmatising trans people as a particularly violent class. That is not the case. I made absolutely clear in my speech that many trans women prisoners could not stay in the male estate because the male prisoners would be violent towards them; they are equally or more capable of violence.
I accept that the court said that what the Prison Service is doing is lawful. On the narrow point of law considered by the court, that is correct, and one would hope that the MoJ would not have a policy that deliberately broke the law. The point of issue here is not ideology but that what is lawful and what is morally right part ways. I urge the MoJ to accept my solution, which lets trans women prisoners live their lives in prison in a safe space, and women theirs. I simply do not understand why the Lib Dems, the Labour Party and some of my own noble friends now dislike women so much that they are resolutely opposed to defending their hard-won rights. I can see how the Government have blundered into this hole, but at least I see signs from them that they have now stopped digging.
I am not going to be successful today, but I say to all my noble friends on the Front Bench, in all departments, that this policy of downgrading the rights of biological sex women is heading for the scrapheap of history. It is not on the side of science, logic, morality or common sense, and everyone outside the political bubble we are in knows that. The battle for common sense and the rights of women will intensify. I conclude by suggesting that all my noble friends and all Ministers should read the excellent article in the Times last week written by my honourable friend Jackie Doyle-Price MP. She said, inter alia:
“Sex is biological and immutable. Gender is social. The two things are distinct. And by conflating sex with gender we have created an inevitable conflict between rights based on sex with those assumed by someone with a transgender identity … We can be inclusive without compromising the rights, dignity and privacy of women.”
Those are wise words. Jackie Doyle-Price is on the side of common sense and history.
I beg leave to withdraw my amendment, not because I am wrong but because I cannot win in the numbers tonight.
Russia
(2 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Collins of Highbury (Lab)
My Lords, this is one of the occasions where we do not have to listen to a Statement being read out, as it was taken last week.
Last Thursday, my right honourable friend, David Lammy, said it was right that Parliament should send
“a clear and unified message … that we fully support Ukraine’s sovereignty and territorial integrity, and that Russian action to further undermine it will be met with severe consequences.”—[Official Report, Commons, 6/1/22; cols. 171-172].
I am pleased that the Foreign Secretary emphasised the importance of NATO in co-ordinating the response, and I hope the Minister will update the House on the UK’s contributions to Friday’s Foreign Ministers’ NATO meeting. After that meeting, members reaffirmed their commitment that all nations have the right to determine their own alliances. Ministers also used the summit to commit to further engagement with Georgia, Moldova, Finland and Sweden. I hope the Minister can tell us whether he intends to speak directly with counterparts in any of these nations.
I am also pleased that Secretary-General Stoltenberg stressed the importance of meaningful dialogue with Russia to avert further escalation. The US State Department account of Sunday night’s dinner, for example, said that the US would talk about certain bilateral issues with Russia in Geneva but will not discuss European security without European allies and partners. France and other European states will be represented at two other rounds of talks over the course of this week.
On the further talks at the NATO-Russia summit on Wednesday, as well as the OSCE meeting in Vienna on Thursday, will the Minister commit to updating the House after the conclusion of these talks? Does the Minister share the analysis of Secretary of State Blinken, who suggested that any agreement is unlikely this week? Certainly, the reports I have read tonight of the discussions today suggest that they have been constructive but unlikely to conclude. Could the Minister tell us whether he, or other Ministers or the Foreign Secretary, will be speaking to US counterparts next week, following the talks?
I would also be grateful if the Minister would elaborate on the development of sanctions, if they prove necessary. The Minister has repeatedly said, sometimes at my request, that they must be agreed and implemented multilaterally. It is equally important the Government are prepared to implement sanctions immediately and in concert with our allies if the situation escalates. Will the Minister confirm that legislation is being drafted in preparation for this eventually?
We must also use this opportunity to ensure that the UK is no longer home to illicit Russian finance. In its 2018 report, Moscow’s Gold, the Foreign Affairs Select Committee warned that
“turning a blind eye to London’s role in hiding the proceeds of Kremlin-connected corruption risks signalling that the UK is not serious about confronting the full spectrum of President Putin’s offensive measures.”
A public register of beneficial owners of overseas entities that buy and sell property was first announced in 2016 but has been repeatedly delayed. As the Guardian reported today, Chatham House has argued that
“the law in this area is so poorly constructed and under-resourced that it amounts to self-regulation.”
As announced in the Guardian today, the Foreign Affairs Select Committee has agreed to re-examine the Government’s apparent inability to crack down on Russian oligarchs’ use of London to launder their fortunes. I hope the Minister will tell us when the Government will act. Will it act before the Foreign Affairs Select Committee reports?
Lord Purvis of Tweed (LD)
My Lords, we also welcome the opportunity to ask the Government questions on its current position regarding Ukraine. Like many noble Lords, I have visited Ukraine on a number of occasions. From our Benches, we recognise and respect its sovereignty and its borders. It is worth noting that it is a border that has seen over 13,000 casualties over the last few years.
The Lords International Relations Committee report, UK Foreign Policy in a Changing World, published when I was a member of the committee, along with my noble friend Lady Smith, stated in paragraph 84:
“Russia is a declining power that is increasingly willing and able to use both traditional and new capabilities—such as cyber capabilities—to act as a disrupter in international relations.”
We have seen this in the Middle East, Central Asia and, especially, in Ukraine, but I agree with the noble Lord, Lord Collins: we have also seen it at home.
Over the Christmas break, I reviewed the annual report of the Intelligence and Security Committee of Parliament, a committee of which my noble friend Lord Campbell had been a member. Of Russia, the committee said:
“The Report questioned whether the Government took its eye off the ball with regard to Russia, because of its focus on counter-terrorism. The previous Committee found that until recently the Government had badly underestimated the response required to the Russian threat and is still playing catch up.”
When will the recommendations of that committee be met in full? This House has acted to change our rules and procedures; when will the Government act on the other recommendations?
The noble Lord, Lord Collins, referred to the Foreign Affairs Committee's report, Moscow’s Gold: Russian Corruption in the UK, which highlighted the estimate that one-fifth of the 176 properties worth £4.4 billion in the UK that have been bought with suspicious wealth have been from Russian individuals. I asked the noble Lord, Lord Agnew of Oulton, when we would see legislative proposals. He replied:
“I am the counter-fraud Minister, and I am pressing hard to get that commitment.”—[Hansard, 25/11/21; col 1108.]
Will the Minister give an update now on when we will see those legislative proposals, which have been much promised but also much delayed? If the Minister who is responsible cannot give that commitment, what is the block?
With regard to the Ukrainian situation, can the Government update us on the UK’s specific approach to the various talks which are now happening? There has been the French and German initiative, as referred to, with Jens Plötner, the envoy of Olaf Scholz, and his French counterpart, Emmanuel Bonne, travelling there last week. Does the UK have a specific named envoy who is participating in any of these discussions? Are we approaching the discussions purely through NATO, or do we have a bilateral strand of diplomacy?
When was the last time the Foreign Secretary spoke to Annalena Baerbock, the German Foreign Minister? We know from the Foreign Secretary’s reply to the Statement last week that she had taken part in G7 and NATO discussions, but what about our discussions directly with the German and French Foreign Ministers? Has the Prime Minister spoken since Christmas to the German Chancellor about the German initiatives?
Parliament last week debated the proposed ratification of the UK agreement with the Government of Ukraine on their naval capacity. As was referenced in the Foreign Secretary’s Statement, the UK now has an agreement to provide offensive capabilities, including missile equipment and technology, to Ukraine, but if reports are correct, part of the discussions on the table this week are about NATO members and their missile capability with regard to Ukraine and Russia. Is this agreement now part of those discussions, and is our agreement with Ukraine covered within any of the NATO discussions?
On sanctions that could be brought in—a situation which we do not wish to see but may be necessary—what contingencies are in place for UK businesses which are currently operating legitimately with Russia but may then be in a position where, without notice, they are carrying on illegitimate business? We know from previous US actions as a result of decisions made about Iran that wide economic sanctions from the United States can have considerable impact on the UK. Regardless of the merits of these, including the decision on SWIFT payments or transactions through the City of London, how many companies are currently conducting business that may have to dramatically change their approach to trade with Russia?
I noted this afternoon that the Department for International Trade is still, despite the Foreign Secretary’s Statement last week, promoting trade and investment with Russia. Indeed, there are events planned for 18 January for online trade and gaming, for example. What contingency arrangements is the Bank of England or, indeed, the Government providing as advice for British businesses that may be in this position?
Finally, without a clear statement of the UK’s bilateral position, including on the situation in Ukraine, we will not be as strong a partner as the Foreign Secretary’s Statement said we would be. We all support the integrity and sovereignty of Ukraine, and I hope that the UK’s actions will deliver on those.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, I thank the noble Lords, Lord Collins and Lord Purvis, for their contributions. I reiterate the point that the noble Lord, Lord Collins, made about the importance of coming together within Parliament in standing against Russian aggression. It is regrettable but obvious that we have seen Russia, not just in the context of Ukraine but in other parts of Europe, exercising all measures, as the noble Lord, Purvis, referred to. Indeed, we have seen challenging situations arise, in terms of technology, through cyber, and through the current continued occupation of Crimea.
The build-up of Russian forces within eastern Ukraine, on the borders of eastern Ukraine and in Donbass also adds to the point the noble Lord, Lord Purvis, made about Russian aggression. Let us be very clear that the current challenges and issues that we face come about because of Russian aggression.
In taking some of the questions, I will read Hansard and the specific questions of the noble Lord, Lord Purvis, in particular, and respond accordingly. Picking up on some of those questions, first, in terms of our contributions, we are working very closely with our NATO partners. The noble Lord asked about specific conversations with French and German counterparts. My right honourable friend the Foreign Secretary, as has been noted already, has participated directly in the meeting of NATO Ministers. This week is a major week in terms of diplomacy—I stress the importance of diplomacy—and I will come on to the meeting conducted today between the United States Deputy Secretary of State and the Russian Deputy Foreign Minister.
As noble Lords will know, and as the noble Lord, Lord Collins, pointed to, the NATO-Russia Council will be taking place. We are certainly looking to attend at ministerial level to ensure there is that engagement, which also picks up the specific point about engaging with US counterparts. We are doing so directly at Foreign Secretary level and with other colleagues. My right honourable friend James Cleverly has assumed responsibility for our relations with the US and how best to approach those. On 13 January—this Thursday—the OSCE Permanent Council will also take place and it is right that in this week, which is a crucial week, diplomacy is put at the forefront of our engagement to seek to de-escalate the current situation on the borders of Ukraine.
On the outcome of the discussions today, like the noble Lord, Lord Collins, I have, during the course of this afternoon, been seeing some of the statements that have been made by both the Russian Deputy Foreign Minister and Wendy Sherman, the Deputy Secretary of State. I think we have certainly seen a constructive tone but, in terms of substantive decision-making, that has not been the case, nor was it intended. What was important was that dialogues take place.
It has been very clear, picking up some of the strands of what the noble Lords asked me, that membership of NATO and indeed the future direction of that alliance—a defensive alliance, of course—is a matter for the alliance and for member states seeking to apply it. There should be no conditionality put on the security of Europe as a whole or, indeed, the current situation with Ukraine and the de-escalation of the situation on the borders of Ukraine. We are very clear that the sovereignty of Ukraine, a point made by the noble Lord, Lord Purvis, should be fully protected and upheld. In this regard, my right honourable friend the Foreign Secretary has made it clear that any further Russian aggression will be met with that unity of action.
Both noble Lords raised the issue of sanctions. Again, I have previously made it clear that where we have acted—in unison with our key partners, most notably the European Union and the United States—we have acted against Russia directly, not just in terms of human rights abuses, but specifically on issues that have arisen in the areas that noble Lords have pointed to, such as anti-corruption, with sanctions in that respect.
Both noble Lords will note, as I am sure will your Lordships’ House, that we have introduced the global anti-corruption sanctions regime and have already sanctioned 14 individuals involved with the $230 million tax fraud in Russia, perpetrated by organised crime groups and uncovered by the brave Sergei Magnitsky. We will continue to review all sanctions in that respect.
Noble Lords rightly pointed out the continuing challenge faced by the City of London. The noble Lord, Lord Collins, talked about open registers of interests. The challenge remains very clear, and London continues to suffer the consequences of the actions of those who seek to use it as a base. We need to continue to be vigilant and to act accordingly. The noble Lord, Lord Purvis, asked specific questions that I believe he has also raised with the appropriate Minister. I do not have that detail, but I shall reply to him and seek to respond accordingly about the actions that my noble friend is taking in that respect.
As for defence capabilities, the noble Lord, Lord Purvis, asked specific questions about our agreements in support of Ukraine, together with the overall agreements we have reached with NATO. What I can share with the noble Lord is that we, of course, co-ordinate very closely with NATO, and our agreements on increasing the defence capabilities of Ukraine are made in concert with our colleagues within NATO, making sure that they are fully aware of the support that we are extending. The United Kingdom was at the forefront of recognising and supporting Ukraine, and we continue to stress to all parties, especially Russia, that its continued aggression on the borders of Ukraine is unacceptable, as is its continued occupation of Crimea.
The issue of the ISC came up again. The noble Lord, Lord Collins, has previously raised that issue, and I have sought to provide the details of the actions the Government have taken. I have placed a copy of that letter in the Library. If there are subsequent questions on the detail that I have provided, I shall of course look to answer them.
Clearly, what we find in the situation on the Ukrainian border is a lack of recognition, so we again implore Russia to look at what has historically been agreed by itself and by Ukraine. We can go back to previous agreements that have been signed, whether those be the Helsinki, the Budapest or the Minsk agreements, and we ask Russia to abide by those. As for the future direction of talks, we are, as I said, looking forward to further discussions this week. Of course, I give an assurance, and recognise that whatever the outcomes of those future discussions, we will report them back to your Lordships’ House.
Lord Lea of Crondall (Non-Afl)
My Lords, on the subject of Crimea as a casus belli for the United Kingdom, did I hear the Minister correctly when he twice referred to Crimea in that way? Of course, that is history, going back well over 10 years, is it not? There is a long history. As we know, Sebastopol, the Russian naval base, is not the same as the issue of Crimea generally, but it is surely a question distinct from what we might call future threats. Will the Minister comment? Have I understood him correctly?
Lord Ahmad of Wimbledon (Con)
If I have understood the noble Lord correctly, Crimea is occupied. It is sovereign territory of Ukraine—
Lord Ahmad of Wimbledon (Con)
I am seeking to respond. Whether this is historical or current, when an action has been undertaken by Russia, in entering the region of a sovereign state, occupying it and annexing it, the fact that that has been done previously, or historically, should not deter us from ensuring that we continue to stand by Ukraine’s territorial sovereignty and integrity. Crimea remains part of that territorial sovereignty and integrity.
Lord Hannay of Chiswick (CB)
Does the Minister not agree that the object we are all pursuing is effective deterrence? Does he not think that the deterrent capacity of the western alliance would be greater if we could specify more precisely what economic sanctions would be imposed if Russia crossed the red line we are drawing regarding the territorial integrity and sovereignty of Ukraine? At the moment, the Russians can delude themselves—perhaps actually believe—that we will not be able to agree anything in those circumstances. If we were to state now some of the specifics of what would happen, that might be an effective deterrent.
Secondly, does he not agree that we need to go into these talks—heaven knows, they are not going to finish this week—with a détente approach that talks about the things we believe should be done to increase strategic stability, reduce the tension and de-escalate, such as arms control and measures in the conventional forces in Europe agreement concerning notification of military exercises and so on? We need to have that. Perhaps the Minister could say something about what NATO will go in with in its hand.
Lord Ahmad of Wimbledon (Con)
My Lords, on the question of specific action, as I have already said in response to the noble Lords, Lord Collins and Lord Purvis, we will of course look to co-ordinate any actions. My right honourable friend the Foreign Secretary has been very clear that a Russian incursion into Ukraine would be a strategic mistake. There should be no doubt that Russian military aggression will be met with massive economic consequence through co-ordinated —I stress that again—economic sanctions by allies and partners, specifically targeting Russian financial transactions, assets and, indeed, individuals. Beyond that, it would be speculative and inappropriate for me to answer with any more detail, but rest assured that we will act in co-ordination with our allies in this respect.
On the noble Lord’s second question, I agree with him: it is important that we look to de-escalate. As I said, I have seen the early reports of the discussions between the United States and Russia, and the tone of those discussions, from both sides, irrespective of the differing positions—of course, we align ourselves with the position of the United States—was constructive. I also note the comments of the Deputy Foreign Minister Sergei Ryabkov, who said that Russia certainly does not intend to make further incursions. Through these talks, which have taken place through the US, but also further talks this week, we have and will emphasise once again Russia’s own obligations to agreements they have signed, including the Budapest memorandum.
Lord Howell of Guildford (Con)
My Lords, the Foreign Secretary made a very eloquent comment the other day about a “network of liberty” being necessary to contain, curb and undermine the authoritarian regimes. Can the Minister explain how, over and above the obvious NATO alliance, this concept can be developed in relation to Ukraine? Does he agree that the really important message to get into the public debate and the Russian debate is that invading Ukraine will do neither the Russian people nor their leaders the slightest good in terms of prosperity or security, whereas the path to diplomacy might bring considerable benefits for Russia, including maybe a more peaceful old age for Vladimir Putin, and freedom to write his memoirs in peace?
Lord Ahmad of Wimbledon (Con)
It may well be that Mr Putin’s memoirs are some way off at the moment, but I totally agree with my noble friend, and that is why it is right that the United Kingdom stand squarely behind the efforts of the United States. Obviously, we will be joining in further discussions, both through NATO and the OSCE, to ensure that diplomacy is given priority; it must be the way forward. Equally, I agree with my noble friend that it is in the interests of not just Russia and Ukraine or, indeed, other parties, but the world that there be a diplomatic solution to the current crisis.
Lord Campbell of Pittenweem (LD)
My Lords, I am all for constructive engagement, but it is worth remembering that this constructive engagement was preceded by the deployment of 100,000 troops, with modern armaments and more than a capacity for invasion, if one can put it that way. It is no secret that Mr Putin’s strategy has been the undermining of the unity of the European Union—in which we have actually aided him by our withdrawal—and the testing of NATO by intimidation. As I have said already, I am all for rational discussion, but it is important to remember that NATO should stand fast as an organisation for defensive purposes only that is open to any country which shares our democratic values and our recognition of human rights. These principles must not be allowed to be watered down in any way in the course of what might appear to be constructive negotiations.
Lord Ahmad of Wimbledon (Con)
Suffice it to say that I totally agree with noble Lord. The NATO alliance is a defensive alliance and it is for countries to make the case to join that defensive alliance. Wendy Sherman, the Deputy Secretary of State, has said today that one of our red lines is very clear: there will be no shutting the door to future membership of NATO. That point has been made very clear in the discussions that have taken place today.
Lord Browne of Ladyton (Lab)
My Lords, I draw attention to my entry in the register of interests, particularly my association with the Nuclear Threat Initiative and my work for the European Leadership Network.
I welcome this Statement and I agree that Russia’s aggression and actions are a threat to Ukraine and beyond. I also welcome meaningful and robust dialogue with Russia. Having called for this for years, I am delighted to see that, at last, this “no business as usual” policy is no longer defined as meaning that dialogue is somehow a reward for bad behaviour and not a necessity in the circumstances that we have found ourselves in since 2014.
So, having called for it for years, I am delighted that the United States and Russia are having this extended and robust dialogue. I am delighted that the NATO-Russia Council with convene later this week. I am delighted that the permanent council of the OSCE will meet, and I hope that there will soon be talks in the Normandy format. I am pleased to say all of this.
But I am surprised that a Statement made by the Foreign Secretary on 6 January did not include any reference to the fact that, on Monday 3 January, our Prime Minister, President Putin and the leaders of the other three nuclear-armed states issued a rare but welcome joint statement on preventing nuclear war, with a common commitment to diplomacy and avoiding nuclear catastrophe. We have now committed ourselves to that, and I welcome it very strongly. But can the Minister tell us some concrete steps that our Government plan to take to invigorate efforts to avoid the risk of nuclear conflict, as a consequence of that commitment which we have now made?
Lord Ahmad of Wimbledon (Con)
My Lords, first of all, I agree with the noble Lord. That statement, which was made at the start of this year by the five countries concerned, was important and welcome and of course in itself represents a step forward.
The underlying purpose of such statements, and the discussions that are currently taking place on de-escalation, is the importance and the central pivot of diplomacy. We cannot at any time stop discussions, even with our greatest foes, if I can put it that way. Discussion is important. Whether it is done through the meetings that are taking place this week or on other challenges and disagreements that we have, including those with Russia, we must continue to engage directly and bilaterally. On the broader point, the UK has of course been at the centre of this. Indeed, on Ukraine specifically, my right honourable is certainly seeking to visit Kiev in the very near future.
Lord Balfe (Con)
My Lords, perhaps I might start by pointing out that it is often a good idea to understand what your opponent actually wants. Last week, it was stated in the other place that recently declassified documents from the US made it clear that, in February 1990, Secretary of State James Baker gave President Gorbachev a categoric assurance that NATO would not, and had no plans to, move east. I do not want to disaggregate that statement, but the fact of the matter is that the Russians feel very aggrieved.
The country of Finland has lived next to Russia for many years without needing to join NATO. Recently, just before Christmas, a man called Jack Matlock, who was the US Ambassador to Russia, published a document about Ukraine in which he pointed out that the Minsk agreements have never been ratified by the Verkhovna Rada. So I say to the Minister: please also recognise that, when we are threatening them with sanctions, there are still things that they could ramp up to cause us damage. The net effect is: please try to cool this thing down and negotiate in good faith to try to get an easing of tension rather than following the line of always ramping things up.
Lord Ahmad of Wimbledon (Con)
I listened very carefully to what my noble friend said, but I do not agree. We have not ramped this up, and nor has Ukraine. It is Russia that has ramped this up. I referred earlier to the entry into the sovereign territory of another country, Crimea, and the annexation of that region against international law. That goes totally against the agreements that Russia itself has signed up to. So this is not about ramping up; it is about responding. It is right that we work with NATO and our allies to ensure that Russia understands very clearly that it is Russian aggression that is at the root of this, and this week—we continue to invest in this—we are seeking to ensure that diplomacy is at the centre of finding sustainable solutions to this crisis.
Baroness Smith of Newnham (LD)
My Lords, the Statement also mentions the western Balkans and the fact that the Prime Minister has appointed Sir Stuart Peach as special envoy. What assessment have the Government made of relations between Russia, Serbia and Republika Srpska, and of the future of Bosnia?
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Baroness is right to point that out. Of course, the appointment of Sir Stuart Peach, which she referred to, underlines our commitment to ensuring that we are at the forefront of ensuring the territorial sovereignty and integrity of Bosnia-Herzegovina. Our noble friend Lord Ashdown, who was respected greatly and whom we miss greatly, made some notable efforts, but I repeat what he said when we discussed Bosnia previously: that this was just the bottom line, not the top line, of what we sought to achieve through the creation of Bosnia-Herzegovina, and it is important that we not only sustain but protect it.
We are deeply concerned that we are in the middle of three days of so-called unofficial celebrations in Republika Srpska, which is currently celebrating with Mr Dodik its creation as a republic. It has not been sanctioned; it is unofficial. Indeed, the scenes that we are seeing unfold are adding to the insecurity. As I said previously, again, it is deeply regrettable that this has been spurred on by support directly from Moscow.
The Lord Bishop of Leeds
My Lords, I note that the Statement refers several times to the rule of law, and I am delighted to hear the commitments made by the Minister and the Government. However, it has not gone unnoticed in the Russian press that there have been threats to the rule of law, not least by the Government here proposing legislation that might undermine international treaties. The Statement says:
“The free world must rise to meet the moment. Britain is stepping up and leading by example.”—[Official Report, Commons, 6/1/22; col. 170.]
That is not necessarily how it is seen elsewhere. Perhaps the Minister can comment on that. I do not ask the question to be awkward; I am simply concerned about it.
Lord Ahmad of Wimbledon (Con)
My Lords, the right reverend Prelate raises the issue of the rule of law. As someone who regularly stands up and talks about the protection of the rule of law, I say that when we look at the global stage and Britain’s role on it, it is important that we are also at the forefront of ensuring that, domestically, we are doing everything to uphold the rule of law. We can make the case effectively only if our record also speaks strongly at home. Of course there are comments and challenges on the UK’s domestic position, but I am proud to represent a country where the rule of law prevails and we seek to protect the rights of individuals and communities—indeed, of every citizen—in our country.
Lord Anderson of Swansea (Lab)
My Lords, the Minister is absolutely right to draw attention to Russia’s failure to honour its obligations under the Budapest agreement. Does he agree that we would be in a stronger position if we came to the table with clean hands and did not ourselves fail to adhere to our obligations under our treaty with the European Union?
I have just returned from Odessa, where I was the only UK parliamentarian at a defence conference. I emerged convinced that Ukraine will put up very strenuous resistance to any Russian invasion; indeed, there would be enormous damage to its international reputation. Russia must know this, so why do the Government think that Russia has put forward maximalist demands which it knows cannot be met? Is it an attempt to extract at least some concessions? If there is to be dialogue, there clearly has to be some give and take, but any concessions which we make in response to Russian posturing and threats surely cannot let down Ukraine and cannot give any succour to the ambitions of Mr Putin. So what concessions can there possibly be which can provide a ladder down which President Putin can climb which do not also add to the misery of Ukraine and to the aspirations of Putin?
Lord Ahmad of Wimbledon (Con)
My Lords, it is not my job to speak for Mr Putin or Russia, and I will not do so. It is clear that we present a united alliance against Russian aggression and we will continue to work with partners in that respect.
Lord McDonald of Salford (CB)
My Lords, the noble Lord, Lord Collins, reminded the House that the Foreign Secretary’s Statement was a very tough Statement using very tough language. I wonder whether there is a danger that it may mislead people in Kiev and Moscow, because, in the end, Ukraine is not an ally of the United Kingdom and is not covered by the Article 5 guarantee of NATO. Will the Minister confirm that his formulation—massive economic sanctions—is the extent, and that we are not talking about any kind of military deployment to Ukraine?
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Lord speaks with great insight and experience of foreign policy. I agree that it is important to underline the consequences of further Russian aggression. I have already alluded to the fact that my right honourable friend pointed specifically to the economic cost and challenge, as I have done again today. As a more general point, I concur that one of the cardinal rules of diplomacy I have learned in the past few years is that tone and content both matter.
Baroness Falkner of Margravine (CB)
My Lords, the Foreign Secretary mentioned Nord Stream 2 and the efforts of the UK Government to discourage European countries’ overreliance on Russia for their energy supplies. Have the Government had any talks directly with the German Government about that in recent months?
Lord Ahmad of Wimbledon (Con)
The noble Baroness will know that the German Government have just gone through a change and that there is a new Chancellor and Foreign Minister. The statements that have been made by the new Administration reflect the concerns that we have constantly reiterated on Nord Stream 2 and the instability it is giving rise to about energy supplies across Europe.
The Deputy Speaker (Baroness Fookes) (Con)
My Lords, the time for Back-Bench questions has now elapsed.
Police, Crime, Sentencing and Courts Bill
Monday 10th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-V Fifth marshalled list for Report - (10 Jan 2022)
22:22 - Division on Amendment 97CA - Ayes: 50 / Noes: 122 - Amendment 97CA disagreed.
23:37 - Division on Baroness Bennett of Manor Castle’s Motion - Ayes: 36 / Noes: 93 - Baroness Bennett of Manor Castle’s Motion disagreed.
00:18 - Division on Amendment 102 - Ayes: 33 / Noes: 90 - Amendment 102 disagreed.
“PART 11ADISREGARDS AND PARDONS FOR CERTAIN HISTORICAL OFFENCESDisregard of certain convictions or cautions
(1) The Protection of Freedoms Act 2012 is amended in accordance with subsections (2) to (10).(2) Section 92 (power of Secretary of State to disregard convictions or cautions) is amended in accordance with subsections (3) to (5).(3) In subsection (1) for the words from “under” to the end of paragraph (c) substitute “in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex”.(4) In subsection (3)—(a) in paragraph (a)—(i) for the first “the” substitute “any”,(ii) for “conduct constituting the offence consented to it and” substitute “sexual activity”, and(iii) omit the second “and”, and(b) for paragraph (b) substitute—“(b) the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it has been re-enacted or replaced), and(c) the sexual activity would not, if occurring in the same circumstances at the point of decision, constitute an offence.”(5) After subsection (6) insert—“(7) In this section “sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(6) In section 93(3) (applications to the Secretary of State), for the words from “the matters” to the end substitute “— (a) whether a conviction or caution is of a kind mentioned in section 92(1);(b) the matters mentioned in condition A in that section.”(7) In section 94 (procedure for decisions by the Secretary of State)—(a) in subsection (1)—(i) after “considering” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(b) in subsection (2)—(i) after “deciding” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(c) after subsection (2) insert—“(2A) If the Secretary of State refuses an application on the basis that the caution or conviction is not of a kind mentioned in section 92(1), the Secretary of State must—(a) record the decision in writing, and(b) give notice of it to the applicant.”(8) In section 99 (appeal against refusal to disregard convictions or cautions)—(a) in subsection (1)(a) after “Secretary of State” insert “refuses an application on the basis mentioned in section 94(2A) or”,(b) in subsection (3), for the words from “that it” to the end substitute “—(a) that the conviction or caution is of a kind mentioned in section 92(1), it must make an order to that effect;(b) that it appears as mentioned in condition A of that section, it must make an order to that effect.”, and(c) in subsection (5), after “subsection (3)” insert “(b)”.(9) In section 100(1) (advisers)—(a) for the second “Secretary of State” substitute “Secretary of State—(a) the caution or conviction is of a kind mentioned in section 92(1), or”,(b) the remaining text becomes paragraph (b), and(c) in that paragraph for “section 92” substitute “that section”.(10) In section 101—(a) in subsection (1)—(i) in paragraph (a) of the definition of “conviction”, after “proceedings” insert “(including anything that under section 376(1) and (2) of the Armed Forces Act 2006 is to be treated as a conviction for the purposes of that Act)”,(ii) at the end of the definition of “sentence” insert “(including anything that under section 376(1) and (3) of the Armed Forces Act 2006 is to be treated as a sentence for the purposes of that Act),”,(iii) at the end of paragraph (a) of the definition of “service disciplinary proceedings” omit “or”,(iv) after paragraph (b) of the definition of “service disciplinary proceedings” insert “, or(c) in respect of a service offence (whether or not before a court but excepting proceedings before a civilian court within the meaning of the Armed Forces Act 2006);and for the purposes of paragraph (c) “service offence” means a service offence within the meaning of the Armed Forces Act 2006, or an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059).”, and(v) in the appropriate place insert—““enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),”,(b) omit subsections (3) and (4),(c) in subsection (5) for paragraphs (a) and (b) substitute “a reference to an inchoate or ancillary offence relating to the offence.”,(d) in subsection (6)—(i) for the first “or incitement” substitute “, incitement, encouraging or assisting”, and(ii) for the second “or incitement” substitute “, incitement, encouraging or assisting”,(e) after subsection (6) insert—“(6A) For the purposes of section 92, an inchoate or ancillary offence is to be treated as repealed or abolished to the extent that the offence to which it relates is repealed or abolished.(6B) A reference to an inchoate or ancillary offence in relation to an offence is a reference to an offence of—(a) attempting, conspiracy or incitement to commit the offence,(b) encouraging or assisting the commission of the offence, or(c) aiding, abetting, counselling or procuring the commission of the offence.(6C) For the purposes of section 92, an offence under an enactment mentioned in subsection (6D) is to be treated as repealed to the extent that the conduct constituting the offence under the enactment—(a) was punishable by reference to an offence under the law of England and Wales which has been repealed or abolished, or(b) if the conduct was not punishable by the law of England and Wales, was punishable by reference to equivalent conduct constituting an offence under the law of England and Wales which has been repealed or abolished.(6D) The enactments are—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955,(f) section 42 of the Naval Discipline Act 1957, and(g) section 42 of the Armed Forces Act 2006.”, and(f) in subsection (7) for “(5) and (6)” substitute “(5), (6) and (6B)”.(11) Nothing in this section affects the disregard of a conviction or caution that was disregarded before this section comes into force.”Member’s explanatory statement
This new Clause would extend the scheme for disregarding convictions and cautions for historical offences that regulated sexual activity between people of the same sex.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, it really is a pleasure to introduce these government amendments to the House. In Committee, I gave a commitment that the Government would consider carefully the amendment tabled by my noble friend Lord Lexden and the noble Lord, Lord Cashman, on the extension of the disregards and pardons scheme for individuals convicted of same-sex sexual activity. They withdrew their amendment then, and I am delighted today to be able to bring forward these government amendments which, I am pleased to say, have their support. It has only taken six years, but we got here.
Amendments 97ZB and 97ZC draw heavily on the earlier amendments to this Bill and the Armed Forces Bill. I am very confident that they reflect the aim of the noble Lords’ proposals. The removal of cautions and convictions from official records is a serious matter, and Amendment 97ZB will ensure that any disregards will meet the established legal criteria to ensure that the Home Office does not inadvertently disregard cautions or convictions for activity that is still illegal today or that involved other still illegal activity. The purpose of the disregards and pardons scheme is to put right the wrongs of the past in which the actions of those attracted to the same sex were unjustly criminalised and lives were severely and negatively affected by having these cautions and convictions on their criminal records.
The current scheme is too narrow: it is largely focused on convictions for the now repealed offences of buggery and gross indecency between men. We recognise that there were a wider range of now repealed and abolished offences, both civilian and military, that were also used to unfairly caution or convict those attracted to the same sex specifically because of their sexuality. To ensure full coverage, Amendment 97ZB will provide for the extension of the scope of the scheme to cover all repealed statutory offences and all abolished common-law offences of this nature. The scheme is also being extended to all service offences, so general disciplinary offences that were used to prosecute those individuals attracted to the same sex will now be covered.
Amendment 97ZC separately extends the existing arrangements for pardons. Those who are granted a disregard will automatically be pardoned. We recognise that many people have now died, or sadly will die, without the opportunity to seek a disregard. The amendment therefore makes provision for posthumous pardons for those who die before 12 months have elapsed after the provisions come into force. Where an offence is repealed or abolished after the provision comes into force, it will also fall within the scope of the scheme. In those cases, provision is made for posthumous pardons for those who die before 12 months have elapsed after the repeal or abolishment.
I take this opportunity to thank my noble friend Lord Lexden and the noble Lord, Lord Cashman, for their continued hard work on this issue. It has taken, as I have said, six years. I also pay special tribute to Professor Paul Johnson of the University of Leeds, who, in addition to advising their Lordships, has also been unfailingly generous in sharing his expertise with officials. I hope these amendments will be the legislative answer that we have been working towards together. It is only by working together that we can achieve this type of change. I beg to move.
Lord Cashman (Non-Afl)
My Lords, it is a great pleasure to speak in support of these two amendments and to follow the Minister, who has, throughout the six years, made it seem a bit like fun, and so time flew past. Joking aside, her commitment from the very beginning has never been in question.
To put these amendments into context, for nearly 500 years this House routinely passed hateful legislation that damaged, and in many cases destroyed, the lives of gay people. Many of the measures that this House passed, century after century, are well known. The Acts of 1533 and 1855 are now infamous, but a battery of lesser-known laws ensured that gay people were systematically fettered within a vile and oppressive regime of regulation that prevented them living full lives.
Lord Lexden (Con)
My Lords, it is immensely gratifying to reach the end of a long, six-year campaign. At last, more gay people who in the past suffered cruel wrong under unjust military and civilian offences are about to be given the means of securing the redress they so greatly deserve. It has been extremely encouraging to receive so much support from all parts of the House, particularly from the noble Lord, Lord Ponsonby, on the Labour Front Bench and the noble Lord, Lord Paddick, on the Liberal Democrat Front Bench.
May I add briefly to the comments made by my fellow campaigner, the noble Lord, Lord Cashman? It was through amendments to earlier legislation, which I moved in December 2016, that the disregards and pardons scheme, in its existing, incomplete form, was brought into force in Northern Ireland with the consent of its devolved Executive and Assembly. The then Justice Minister in Northern Ireland, Claire Sugden, said at the time it was important to ensure that the criminal law in Northern Ireland offers equality of treatment to gay and bisexual men in Northern Ireland with England and Wales.
There can be no doubt that widespread support exists in Northern Ireland for the redress of past gay injustices, particularly among younger people, on whom the future of that wonderful part of our country depends. I am confident it will be strongly felt in Northern Ireland that its devolved Department of Justice should use the powers it possesses under existing legislation to bring today’s amendments fully into force in the Province when they become law here very shortly. That would be particularly appropriate this year, which marks the 40th anniversary of the initial decriminalisation of homosexuality in Northern Ireland, following the triumph of my friend Jeffrey Dudgeon in the European Court of Human Rights, which forced the Thatcher Government to take action in 1982.
The Minister signed my amendments back in 2016. I hope she will endorse my comments today. It cannot be right to have a border down the Irish Sea in respect of human rights.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise as I did in Committee to speak briefly and humbly on behalf of my noble friend Lady Jones of Moulsecoomb, who signed the matching amendments in Committee. I can only pay very strong tributes to the noble Lords, Lord Cashman and Lord Lexden, for all their long work on these issues. The Green group, of course, welcomes these amendments. I would like to thank the Minister for her helpful letter that addressed the questions I raised in Committee about why it is not possible to automatically get rid of these offences to clear people of them.
In the light of that, I would simply like to prompt the Minister—though I realise it is early—for whatever information she might be able to give us both about what plans there are to publicise this legal change to make sure people are able to easily and simply apply and about what kind of timeframe for the process she sees going forwards. As has been said, many people affected by this may be of an older age group, and it is really important this is available to people as soon as possible.
Lord Paddick (LD)
My Lords, at last, much credit must go to the noble Lords, Lord Lexden and Lord Cashman, and to Professor Paul Johnson, but also to the Minister, who accepted the challenge from the noble Lords and ran with it. I understand the right honourable Priti Patel took little persuasion. Whether that is the Minister being modest or not, I have nothing but thanks and praise for all those involved.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I feel privileged to come in at the tail-end of this six-year campaign. I have to say I found it very moving listening to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who does me the privilege of taking an interest in my family history. I have followed his campaign on this matter as well. I also note the points he made about the position in Northern Ireland. It has been a six-year campaign—to use the words of my noble friend—to wipe away the stain on history. It seems to me these amendments are doing this. I also join in the praises from the noble Lord, Lord Paddick, of the Minister, who appears to me, as a latecomer to this, to have been with the campaigners every step of the way.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords for their kind comments. It is lovely when unity breaks out in this House, particularly when that unity has been hard fought. On the union—I take my noble friend’s points about Northern Ireland—I will certainly relay those comments to the Minister for Justice. I would imagine that the publicity will start on commencement of the Bill and be published on GOV.UK. There has already been some great publicity on social media and elsewhere, so publicity is already under way.
“Pardons for certain convictions or cautions
(1) The Policing and Crime Act 2017 is amended in accordance with subsections (2) to (13).(2) Section 164 (posthumous pardons for convictions etc. of certain abolished offences) is amended in accordance with subsections (3) to (10). (3) Before subsection (1) insert—“(A1) Subsection (1) applies in relation to a person—(a) who was convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex, and(b) who died before the end of the period of twelve months beginning with—(i) the day on which section (Disregard of certain convictions or cautions) of the Police, Crime, Sentencing and Courts Act 2022 comes into force, or(ii) if later, the day on which the offence referred to in paragraph (a) became an abolished offence (see subsection (1A)).”(4) For subsection (1) substitute—“(1) The person is pardoned for the offence if—(a) any other person involved in the sexual activity was aged 16 or over, and(b) the offence has become an abolished offence.(1A) An offence becomes an abolished offence at the point at which conditions A and B are first met.(1B) Condition A is that the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it was re-enacted or replaced).(1C) Condition B is that the sexual activity referred to in subsection (A1)(a) would not, if occurring in the same circumstances, constitute an offence.”(5) Omit subsections (2) to (6).(6) In subsection (7)—(a) for “subsection (8)” substitute “subsections (8) and (8A)”, and(b) at the end of paragraph (b) insert “(but as if the reference in subsections (6A) and (6C) to section 92 were a reference to this section)”.(7) In subsection (8) (as amended by section 19 of the Armed Forces Act 2021)—(a) omit paragraph (ba),(b) at the end of paragraph (c) omit “or”,(c) after paragraph (c) (but before paragraph (d) inserted by section 19(3)(d) of the Armed Forces Act 2021) insert—“(ca) the Mutiny Act 1878, the Marine Mutiny Act 1878, any Act previously in force corresponding to either of those Acts or any relevant Articles of War, or”.(8) After subsection (8) insert—“(8A) Section 101(6D) of the 2012 Act is to be read, in its application to this section by virtue of subsection (7) of this section, as if the enactments listed in that subsection included—(a) Article 2 of Section 20 of the Articles of War of 1749 (offences triable by courts martial outside Great Britain),(b) section 38 of the Naval Discipline Act 1860,(c) section 38 of the Naval Discipline Act 1861,(d) section 41 of the Naval Discipline Act 1864,(e) Article 93 of Section 2 of the Articles of War of 1876 (offences not specified in Marine Mutiny Act or Articles of War),(f) section 41 of the Army Discipline and Regulation Act 1879, and(g) any provision corresponding to the provision mentioned in paragraphs (a) or (e), contained in other relevant Articles of War.” (9) In subsection (10) (inserted by section 19 of the Armed Forces Act 2021) insert in the appropriate place—““sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(10) After subsection (10) insert—“(11) Subsection (1) does not apply in relation to an offence for which the person has previously been pardoned under this section or section 165.”(11) In section 165(1) (other pardons for convictions etc. of certain abolished offences) after “offence” insert “in the circumstances”.(12) Omit section 166 (power to provide disregards and pardons for additional abolished offences).(13) In section 167 (sections 164 to 166: supplementary)—(a) in the opening words of subsection (1) omit “, or under regulations under 166,”, and(b) in subsection (2)—(i) for “sections 164 to 166” substitute “section 164 or 165”, and(ii) omit “or regulations under section 166”.(14) Nothing in this section affects a pardon for a conviction or caution which took effect before this section comes into force.(15) In section 19 of the Armed Forces Act 2021 (posthumous pardons in relation to certain abolished offences), omit subsection (2) and paragraphs (b) and (c) of subsection (3).”Member’s explanatory statement
This new Clause would extend the scheme for posthumously pardoning people convicted of or cautioned for historical offences that regulated sexual activity between people of the same sex.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in moving Amendment 97A, I will speak briefly to Amendment 97B. These amendments seek to remove children from the application of Clause 168, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18. Amendment 97C, also in the group, provides that the court may not give directions for live links in criminal proceedings where a party to the proceedings is a child under the age of 18.
I take on board the comments made in Committee that these are blanket amendments which may not necessarily be appropriate in all cases. What has given rise to these amendments is concern about the drift to greater use of video hearings without adequate safeguards. Amendment 97CA in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, would prevent a criminal trial proceeding with the jury or members of the jury in a different physical location from the judge, witness or counsel. We would support this amendment should the noble Lord decide to move it to a vote, but I will leave him to advocate for his own amendment.
Amendment 97D seeks to require that all defendants who might appear on a video or audio link from a location outside court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised; it is this amendment that I want to concentrate on. As I have said, it seeks to require that all defendants who might appear on video or audio link are subject to health needs screening. I have a quite extensive briefing from various advocacy groups, including Fair Trials, Transform Justice and Just for Kids Law, which are concerned about the greater use of video links that we have all experienced. Certainly, anyone who works in the criminal justice system has experienced this in the last couple of years. The concern is that some of the changes we have seen are not necessarily positive, and there should be a resistance to permanently moving to a greater use of video links.
The central point is that the judiciary should make an informed decision about whether a case should go ahead via some form of video link. The decision should be informed by a mental or physical health assessment of the young or vulnerable person. It seems to me that that is an unanswerable point. I have been in the position of making these decisions in circumstances that were very far from adequate. I have done so because of the expediency of the situation and the urgency of dealing with the cases that have come before me—but this must not be allowed to become the norm.
Video links have a purpose. They can in some cases help to get a case moving forward so that a just decision can be reached, but in most cases they are not appropriate. A judge or magistrate needs to be able to make an informed decision about whether to proceed with video links for whatever bit of process they are dealing with within the court system.
Lord Pannick (CB)
My Lords, Amendment 97CA is in my name and those of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks. Unfortunately, the noble and learned Lord, Lord Judge, cannot be in his place this evening because he has been attending a funeral.
Amendment 97CA would remove from the Bill the power in Clause 170 for a court to give a direction that the jury can participate in a criminal trial remotely; that is, in a different location to the judge, counsel and witnesses so long as all members of the jury are in the same place. Jury trial is, of course, one of the cornerstones of our criminal justice system—whether you approve or disapprove of the Bristol jury’s decision to acquit the defendants of criminal damage to the statue of Edward Colston. We need to consider very carefully indeed proposals to amend the way in which the jury performs its functions.
I share the concerns about this proposal that have been expressed by the Bar Council and the Law Society. They say that the success of a jury trial depends in large part on a good working relationship of trust and confidence between judge and jury. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that its interests are protected and it is properly performing its responsibilities. Counsel—both prosecution and defence counsel—need to engage with the jury during the trial. All this is so much harder to achieve through a video screen—indeed, noble Lords will be aware of that from when they have participated in parliamentary proceedings through a video screen over the last two years.
This proposed power requires a strong justification. I listened carefully—I always listen carefully—to what the noble Lord, Lord Wolfson, said in support of this power in Committee and indeed in discussions that I have had with him since, for which I am very grateful. The Minister concedes—indeed, he positively asserts—that this Government have no plan to encourage the use of remote juries. Indeed, they have had no such plans in the nearly two years since Covid-19 began to blight our lives. What the Minister says is that it will be good for Ministers to have this power, just in case it proves useful at some stage in the future. I suggest to noble Lords that it is a very bad legislative practice to confer broad powers on Ministers, particularly powers as controversial as these, just in case they might prove useful at some stage in the future.
The Minister will no doubt give assurances to the House about whether and when these powers might be used. The insuperable difficulty with legislating on such a basis is that the noble Lord, Lord Wolfson, cannot bind his successors in office, who may well have different principles and different policies.
I say to the House that these proposed powers, if ever used, would pose a real threat to the effective administration of justice. There is no current need for them.
Lord Carlile of Berriew (CB)
My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.
I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.
In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.
So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.
If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.
Baroness Bennett of Manor Castle (GP)
My Lords, this group, particularly Amendment 97A, has become pertinent in light of the apparent situation whereby the Attorney-General has displayed something less than a full commitment to the principle of the right to a jury trial. Many commentators are sadly leaping on the Colston four verdict to question the jury system and apparently seek to undermine public confidence in the principle that every person has the right to be tried by their peers. This would be an ideal opportunity for the Minister to reassure your Lordships’ House—I hope he will—that, no matter how politically inconvenient it might be for the Government, trial by jury is fundamental to our justice system and the Government remain committed to it. As the noble Lord, Lord Pannick, said, Amendment 97CA is an important practical step to ensure that that remains a proper, full jury trial, with the kind of interactions that we have heard about.
Briefly, the other amendments in this group are important to protect children and other vulnerable court users. It seems like a basic issue of justice and common sense that the court should ensure that the people who appear by video link are still able to participate fully in the proceedings. I hope that the judiciary would never allow anything contrary to this, although I take the point from the noble Lord, Lord Ponsonby, that the practical sometimes has to override the ideal. None the less, it seems right that the legislation should offer these protections.
Lord Macdonald of River Glaven (CB)
My Lords, I strongly support both of these amendments but will focus on that tabled by the noble Lord, Lord Pannick. Something was said about the judge’s interaction with the jury and, of course, that is true. Judges have a close interaction with juries in the sense described; it is part of the process of building up their confidence to make what is going to be a very important decision at some stage towards the end of the trial.
I would like to say something about the position of a jury which finds itself in a separate place observing the proceedings on a screen. The point of the jury is to make determinations about fact in the case—to decide who is or is not telling the truth and who the jury is or is not persuaded by. Judges often say that one of the things juries should do is judge the demeanour of witnesses and defendants, looking at them giving their evidence, watching closely as they are asked questions, making allowances for inarticulacy, intelligence and so on, but making a judgment about them as human beings in the very human environment of a trial. That would be an impossibly difficult task to discharge adequately over what is, in effect, a Zoom meeting.
Some of us have had the experience during the pandemic of trying to chair meetings over Zoom, sometimes with relatively large numbers of people in the so-called virtual room. It is very difficult to read people over Zoom, judge the feel or mood of the meeting, read what people are thinking and see who is paying attention and who is not. In a criminal trial, these things become dangerous and render a deficiency at the heart of the trial which is to be avoided at all costs.
If there is no need for the power now, it is not a power which Ministers should be given. If it becomes necessary at some future date, then your Lordships’ House can debate it, but I agree very strongly with my noble friend Lord Pannick that such an extensive, broad power as this should not be gifted to Ministers in the absence of absolute need—and perhaps not even then.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too support the amendment of the noble Lord, Lord Pannick. Strongly though I support it and absurd though I too think it is to allow for some possibility of a jury trial with the jury sitting otherwise than in the actual courtroom, I had no intention of speaking tonight until I learned that my noble and learned friend Lord Judge could not. As I seem to be the last judge standing this evening and feel so strongly about this, it seems that I should say a word. But I urge all of your Lordships to recognise that if my noble and learned friend had been speaking, he would have said the little I propose to say so much more tellingly and convincingly that the House really ought to add enormous weight to it.
All I say is that the whole value of a jury, sacrosanct in our law of course, is that they are there and part of the atmosphere. They watch the whole thing unfolding, see the witnesses and sense the entire development of the arguments as they emerge. My noble friend Lord Carlile made a number of these points, as the noble Lord, Lord Macdonald, has just done. The whole aura of the process and the fact that the jury recognise in the courtroom that they are, for the first time, having to apply themselves to this critical question—is this man or woman guilty or not guilty?—is lost and dissipated if they are not there. I urge your Lordships not to provide for this suggested possibility, for who knows in what circumstances it would be? They can be only circumstances that do not justify having a separate jury.
Lord Marks of Henley-on-Thames (LD)
My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.
This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.
As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.
These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.
On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.
However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this group contains amendments covering the application of live links to children and vulnerable people as well as to remote juries. I will come to the remote juries point separately later.
First, to make sure that we are all on the same page, I remind the House that Clauses 168 and 169 do not mandate remote or video hearings. How a hearing is to be conducted is a matter for judicial decision on a case-by-case basis. These clauses ensure that, if appropriate, observers can watch a hearing taking place to ensure that the principle of open justice can be maintained.
Amendments 97A and 97B seek to prohibit remote observers from being present in all cases in which a child is among the parties. Amendment 97C similarly seeks to remove children from the application of Clause 170. I suggest both these amendments are unnecessary and would inhibit both the principle of open justice—which is a fundamental principle in this jurisdiction—and the principle of judicial discretion. It would inhibit the ability of courts to use audio and video technology where the court sees fit and when it is in the interests of justice to do so.
I turn first to Amendments 97A and 97B. The effect of these amendments would be that all such remote hearings would effectively have to be held in private, including, for example, any multiparty litigation in our civil courts or tribunals in which a single claimant—perhaps one of a number of claimants—is under 18. That would unnecessarily constrain the transparency of our justice system and impede the principle of open justice.
While I accept the sentiment that underpins the amendments, they are unnecessary because we have sufficient tried-and-tested legislation in place to safeguard the privacy of children in these proceedings. That is set out in Section 47(2) of the Children and Young Persons Act 1933. We also have existing procedure rules under which the court can hold any hearing in private in order
“to protect the interests of any child or protected party”.
Therefore, I suggest to the House that that statutory provision and the procedure rules provide sufficient protection to safeguard the privacy and well-being of young people in the justice system, whether the hearing takes place in-person or remotely.
Amendment 97C would prevent the court making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings. Again, it is important to protect the interests of children, but we have clear support and guidance in place which mandates the court to consider and have regard to the welfare of the child, to make sure that each child is fairly assessed and represented, is sufficiently supported, can understand what is happening, and is able to engage and participate in proceedings and be kept safe. That is set out in the Criminal Procedure Rules and criminal practice directions.
I recognise, as the noble Lord, Lord Carlile of Berriew, said, that, in the majority of cases, it may well be more appropriate for children to attend a hearing in person, and the Criminal Procedure Rules recognise this. But one must recognise that there may be situations where it is more beneficial for a child, whether as a witness or a defendant, to participate by live link; for example, to protect a child witness from having to be in court with the defendant. Clause 170, as drafted, gives the court that inherent flexibility.
I will come to Amendment 97D in a moment but let me first turn to Amendment 97CA, tabled by the noble Lord, Lord Pannick, which seeks to exclude juries from the provisions in Clause 170 that would otherwise allow a jury assembled together to take part in a trial through a live video link, where appropriate and where the court has decided that it would be in the interests of justice to do so. I will come to the detail of the amendment in a moment, but let us not lose sight of one important point. This amendment is designed to strengthen and support the jury system. It is designed to ensure that we can continue to hold jury trials in circumstances where it might otherwise be impossible, as we experienced for a certain time in this jurisdiction during the pandemic. I am pleased that we were one of the first jurisdictions in the world to get jury trials back up and running, but we could not do as many as we would normally because of the social distancing constraints.
Why are we so keen to maintain jury trials? The answer is simple and perhaps a little topical. The jury is a fundamental part of our criminal justice system. To adopt the words of the noble Lord, Lord Pannick, it is a cornerstone of our liberty. True it is that the cornerstone gets a little defaced with some graffiti from time to time, but it is, none the less, a cornerstone of which we should be proud.
The noble Baroness, Lady Bennett of Manor Castle, threw something of a gauntlet down to me. I am very happy to pick it up, briefly. Juries sometimes return verdicts that raise an eyebrow, but I know from bitter experience that it is not unknown for judicial decisions to trouble the eyebrows too. In a proper case, there is a procedure, once the jury has brought in its verdict, to ask the Court of Appeal to consider and determine specific points of law to assist in future cases without disturbing the actual jury verdict in the instant case.
If the noble Baroness wants to have a crack at my right honourable friend the Attorney-General, she can, but she cannot, I am afraid, stand up and have a crack at her while betraying fundamental ignorance of the underlying legal principles. Counsel in the case himself said that his arguments were “new and complex”. Those are precisely the points which would be suitable for reference under Section 36 of the Criminal Justice Act 1972, a provision with which I am sure the noble Baroness is very familiar. I am also sure that she has read the recent case in the ECHR of Handzhiyski v Bulgaria, decided on 6 April 2021, which discussed in terms whether the provisions of Article 10 of the ECHR did or did not apply to a charge of criminal damage.
I am very happy to respond on the glories of the jury system, but I respectfully suggest that, if the noble Baroness is going to make a point about the conduct of the Attorney-General, she looks at the underlying legal position first. There are certainly points in the Colston case which an Attorney-General might properly decide to, or not to, refer to the Court of Appeal. That is a matter for the Attorney-General.
Lord Pannick
“(2) Subsection (1) does not apply to a jury or to members of a jury.”Member’s explanatory statement
This amendment would prevent a criminal trial proceeding with the jury (or members of the jury) in a different physical location to the judge, witnesses or counsel.
Lord Pannick (CB)
My Lords, I am grateful to all noble Lords who have contributed to this important debate, not least the Minister. In the debate your Lordships have heard that there is, at least, a very substantial risk that the jury being remote from the rest of the trial would damage its ability to perform its functions. The question, then, is whether there is a compelling need for this proposed new power. The Minister very fairly confirmed that there is no current intention to implement the proposed power. I suggest that if and when there is any such intention, that will be the time to determine whether it is appropriate, in such circumstances, to confer such a sensitive and controversial power. Ministers should not be given such powers on a so-called future-proofing basis—to use the Minister’s term. I wish to test the opinion of the House.
Earl Attlee
“Facilitation of potting
(1) A person commits an offence of facilitation of potting if the person—(a) is in custody and causes or permits their own urine or excrement to be intercepted without lawful reason or excuse, or(b) is in custody and causes or permits their own ejaculate to be intercepted without lawful reason or excuse.(2) For the purposes of subsection (1)(a), only in exceptional circumstances may the court accept a defence of “lawful reason or excuse” in the absence of evidence of a prior direction by a clinically qualified person.(3) A person guilty of an offence to which this section applies is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.”Member’s explanatory statement
This amendment aims to establish a specific offence of “facilitating potting”, potting being the practice of throwing urine, excrement or ejaculate at prison staff.
Earl Attlee (Con)
My Lords, Amendment 99, is in my name and those of the noble Lords, Lord Ponsonby of Shulbrede and Lord Paddick: I am grateful for their support. We return to the issue of potting—that is to say, a disgusting assault using materials mentioned in subparagraph (1) of the new clause and which usually occurs in a custodial setting. In the light of a constructive meeting I had with the Minister last week, I do not propose to detain the House very long on this matter, and I do not believe the House or, indeed, my Chief Whip, is keen to do so either.
Since we debated the matter in Committee, the Government have published a White Paper on the prison system which, inter alia, proposes zero tolerance for bad behaviour in prisons. I have taken on board some of the defects of my original amendment, identified in Committee: the amendment now deals only with the preparatory act of intercepting the relevant substance. It is not necessary to have a new offence for the actual potting, since that is covered by existing offences, and it is not good practice to place a duty to provide spit kits in a clause that seeks to create a new offence.
In Committee, I thought the Minister was a bit optimistic when he said he was not aware of any problems with the issuing of spit kits to prison officers. A subsequent Written Answer revealed that none of the several prisons that I asked about appeared to be issuing spit kits. I accept that spit kits are particularly useful when the offender is not known to the victim—say, a ticket inspector—and when the offender may abscond but probably has a record. However, my underlying concern is to ensure that these disgusting offences do not go unpunished and, as a result, become more frequent and insidious. I hope my noble friend will take this opportunity to flesh out the proposals in the Prisons Strategy White Paper to have zero tolerance of bad behaviour within prison.
We all owe a great debt of gratitude to prison officers and prison governors, who we charge with looking after and protecting us from some of the most dangerous, wicked and obnoxious members of our society. We owe it to them to make sure that, if they are assaulted doing their duty, we will back them up and ensure that perpetrators are brought to justice. If we fail to do so, there will be at least two serious consequences: first, we will experience difficulties in retaining the best possible prison officers; secondly, the remaining prison officers will be demotivated, less willing to ensure full compliance and less willing to ensure that prisons are the safe and humane establishments that we all want them to be. I am pleased to say that I have detected that Ministers have taken all this on board.
Finally, I remind the House that I am not a founder member of the “hang ‘em, flog ‘em and throw away the key brigade”; the House will recall my proposals outlined in my Committee stage Amendment 241, which proposed drastic reform in respect of prolific minor offenders, and I am grateful for the positive response that I received. I beg to move.
Lord Paddick (LD)
My Lords, I am very pleased to support the noble Earl, Lord Attlee, in his amendment, to the extent that I have added my name. We had discussions between Committee and Report; we agreed that the actual assault was covered by existing legislation, but the preparatory acts in preparing these disgusting attacks on prison staff needed to be addressed. That is how we arrived at the revised amendment, and I am very happy to support it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I pay tribute to the noble Earl: he has been dogged in his pursuance of this and I understand he has had constructive discussions with the Minister. I look forward to what the Minister is going to say to, in the noble’s Earl words, flesh out the proposals in the White Paper, and how these may lead to greater support for prison officers. One specific question for the Minister is how they propose to monitor potting and whether it is done by somebody acting in extreme distress or whether it is part of a planned tactic, if you like, within the prison.
In conclusion, I repeat my tribute to the noble Earl—it appears to me that his time in the TA may have led to his having some empathy with prison officers. I do not know, but nevertheless I support his amendment.
Lord Wolfson of Tredegar (Con)
My Lords, I also thank my noble friend Lord Attlee for tabling this further amendment on potting, which is vile behaviour and undoubtedly a horrific experience for those who become victims of this practice. I say unambiguously that it is therefore right that such incidents are prosecuted where there is sufficient evidence or that they are otherwise dealt with through prison adjudication.
My noble friend was particularly concerned about the availability of spit kits to collect evidence where crimes are committed. I hope that I can reassure him by saying that some prisons already purchase spit kits locally as a matter of course, but we will consider further whether there is a need to make them available to prisons nationally, as part of our focus on reducing crime in prisons.
Earlier discussions with the police and CPS confirmed that the use of body-worn cameras, rather than spit kits, would offer the greatest means of providing evidence to enable prosecution of crimes in prisons. That is why we have concentrated on providing these. Indeed, we are introducing a new generation of body-worn video cameras during this year, with newer, more technologically advanced cameras that will be available to every prison officer who needs one. They include a pre-record facility that effectively records and overwrites footage—so the pre-record footage is saved when you press a button. They are similar to cameras that are available to other people in the criminal justice system and mean that it will be easier to provide evidence of potting and therefore to support a prosecution.
The noble Lord, Lord Paddick, correctly identified that, in the amendment, this is a preparatory offence and tries to capture behaviour even where the act of potting itself may not yet have occurred or have occurred at all. The offence would apply where an individual possesses, provides or allows others to use their bodily fluids, intending them to be used for malicious purpose—and where an individual has assisted, aided or encouraged a crime. Of course, doing those preparatory acts is already a crime under Sections 44 to 46 of the Serious Crime Act 2007 or possibly under the Criminal Attempts Act 1981. The penalties for those preparatory offences are the same as those for the substantive offence.
We are also concerned about a practical difficulty: collecting urine samples may be impeded by the wording of this amendment. We are also concerned that it does not offer, in terms, a defence for those who do not intentionally facilitate this but whose bodily fluids are used by someone else for a malicious purpose. However, I will not say any more about that because my noble friend has recognised that the Government have listened to him on this and are taking the matter seriously. We recognise that more can be done to improve the effective prosecution of crimes in prison. It is a priority, and we will continue to work to ensure that those agencies and organisations prioritise serious crimes, enabling clear criminal consequences when they occur. HMPPS works with the police and CPS to improve rates of prosecutions for crimes committed within prisons.
I know that my noble friend is motivated by his admiration of the work of prison officers—I will not speculate about the genesis of that. But the fact is that they have to deal with some of the most difficult and dangerous members of our society. We in the Ministry of Justice share that view. In the prisons White Paper, published in December last year, we set out a zero-tolerance approach to crime in prisons. We will set up a crime in prisons task force, which will identify and expose any systemic failings that allow continued criminality in prisons, enhancing our capabilities to disrupt crime and ensuring that evidence and investigations lead to more criminal justice outcomes. We will commission the taskforce to look specifically at potting offences.
The White Paper also sets out our commitment to refer the most serious crimes, such as assaults on prison officers, to the police, in accordance with the crime in prisons referral agreement, which exists between Prison Service, the CPS and the National Police Chiefs’ Council. I appreciate that I have dealt with that fairly quickly, but I hope that I have reassured my noble friend that the Government have listened very carefully to what he has said.
I will respond to the point put to me by the noble Lord, Lord Ponsonby. Offences of potting are captured in published statistics—specifically the quarterly Safety in Custody Statistics. But if I can add anything to what I have just said, I will write to him. I hope that, for those reasons, my noble friend will feel able to withdraw his amendment.
Earl Attlee (Con)
My Lords, I am grateful to all three noble Lords who have spoken on this issue and the two who have supported me. I believe my noble friend the Minister has taken this issue on board, and I thank him for that. We know perfectly well that we are limited as to how many presents we can load on the Christmas tree for the Minister to take back to the Commons, and I accept that there are bigger fish to fry. What I cannot accept is that we allow this type of assault to go unpunished. Prosecution and conviction need to be inevitable. That means necessary evidence must be collected, and the police and the CPS must devote sufficient resources to the problem.
It is clear to me that the amendment is not defective and there is a gap to fill, although I accept that there may be minor drafting issues. The issue is whether we want to create a new offence. The White Paper proposes zero tolerance for bad behaviour, and if potting is not bad behaviour, I do not know what is. Ministers and officials should be aware that I will be working very closely with the Prison Officers’ Association to monitor progress and, if necessary, we can bring this amendment, or a similar one, back at a suitable legislative opportunity. In the meantime, I beg leave to withdraw my amendment.
Baroness Chakrabarti
“Duty to establish statutory inquiry into lessons to be learned from the death of Sarah Everard
(1) The inquiry into matters arising from the death of Sarah Everard, announced by the Secretary of State for the Home Department on 22 November 2021, is to be held as an inquiry under the Inquiries Act 2005. (2) The Secretary of State must ensure that the terms of reference of the inquiry include the wider lessons to be learned for the professional culture, funding, vetting and organisation of policing, the prevention of violence against women and the investigation and prosecution of misogynistic crimes.(3) If on the commencement of any provision of this Act, the inquiry does not have a panel of members which includes at least one member with experience in the area of violence against women, the Secretary of State must ensure that such a member is appointed.”Member’s explanatory statement
This amendment converts the existing Home Office inquiry into the matters arising from the death of Sarah Everard into a statutory inquiry under the Inquiries Act 2005. It also ensures that the Inquiry panel includes at least one member with experience in the area of violence against women and girls.
Baroness Chakrabarti (Lab)
My Lords, here we are, quite late into the evening, to discuss the group of amendments refined from amendments tabled in Committee in response to the horrific rape and murder of Sarah Everard and, I am afraid to say, a wholly inadequate response from some of the most senior police leaders in our country.
I do not want to dwell too much on this, but I do not think that it reflects incredibly well on the way we do business in your Lordships’ House that this group has miraculously come to be debated at this particularly late hour, not least given the fact that I have been around all day and have heard some very lengthy, florid, colourful, relaxed speeches on all sorts of subjects all afternoon and evening from all sorts of delightful Members of your Lordships’ House who have been infrequent engagers with this Bill and most of whom, for all sorts of reasons, are no longer here. I do not think that this self-regulating House has done justice to women and girls in this country, nor, indeed, have those who effectively control the agenda and have allowed this group to be opened at approaching 10.50 pm.
I feel the need to put that on the record for Hansard so that the various women’s groups and victims’ groups who have been waiting for this group to come up will be able to understand exactly what has gone on. I was particularly concerned about some of the debates that went on just before the dinner break with no concern for time—and sometimes not much concern for kindness or the dignity of our fellow human beings, but enough of that—no intention of a vote and no real intention of changing the law. I have also noticed the way in which some of us are censored for our length at strategic moments and others are not in this so-called self-regulating House.
This group deals not just with the Sarah Everard outrage but with the public concern about it and the way that women and girls have been treated in our criminal justice system more generally, and what that means for a crisis of confidence, potentially, in our police service, which is so essential to the rule of law.
I am grateful to noble Lords from parties and groups from all across your Lordships’ House for their consistent support for the calls for a full statutory inquiry, particularly into the broader matters arising from the Sarah Everard scandal. It makes the earlier remarks necessary. Of course, for all sorts of completely legitimate reasons—not least that people come from all over the country, have different health conditions and are of different ages—it is not possible for everyone who wanted to be here to be here right now.
Amendments 108 and 109 are in my name. Amendment 108 is supported by the noble Lords, Lord Carlile of Berriew and Lord Paddick, and the noble and learned Lord, Lord Garnier, while Amendment 109 is supported once more by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Garnier. These two amendments deal with the specific issue of it being lawful at present for arrested people—that is, people who are suspects but have not been charged and are therefore not defendants, or at least believe themselves to be suspects when they are stopped by a police officer, as poor Sarah Everard was—to be taken away in a vehicle by a lone police officer. Noble Lords, particularly those who have engaged with this issue and were here in Committee and at earlier stages of the Bill, will appreciate that that possibility has understandably caused a great deal of concern, in particular since last autumn when Wayne Couzens’s sentencing hearing revealed some of the truly horrific details of that case.
Amendment 108 would prevent a single officer ever lawfully taking suspects away in a vehicle. Amendment 109 takes a slightly gentler approach—helpfully suggested to me by the noble Lord, Lord Carlile, I might add; I am grateful to him—to the same problem. It does not create an absolute legal bar to a lone officer taking a suspect away in a vehicle, with all the dangers that that one on one creates for both the officer and the suspect; instead, Amendment’s 109 approach is to amend PACE—the Police and Criminal Evidence Act—so that the Secretary of State would be required to issue a full-blown PACE code of conduct to deal with the transportation of suspects.
Given who is left at this time of night, I know that the noble Lords here are engaged with these issues and understand the importance of PACE codes in particular. They are required in relation to things like detention and the questioning of suspects in a police station. Since 1984, they have been a really important protection for citizens in the police system. Amendment 109 is a new amendment—I did not table it in Committee—and I am very grateful to the noble Lord, Lord Carlile. I really want to hear any conceivable argument against this mild amendment, which would add “transportation” to the list of activities in relation to suspects for which the Secretary of State should issue full-blown statutory PACE codes of conduct.
When one considers Amendment 108—my previous amendment, unenlightened by the noble Lord, Lord Carlile—with its absolute bar on single officers taking suspects away, or the amendment to PACE, it is worth noble Lords remembering some of the quite bizarre and hubristic public comments that were made. They included, I am afraid to say, comments made by a police and crime commissioner who is no more, as well as by certain retired and serving police leaders, about women being naive in going along with a police officer who stops them late at night. They said that there is something wrong with them—that it is the woman’s fault. Some ridiculous public comments were made.
Equally, however, there were other comments suggesting that this practice should be changed and things should be done. If things can be done by way of police administration, why can they not be somehow reflected in this Bill? This would give greater confidence to the young women and girls in particular—wholly law-abiding people—who have been feeling such anxiety and such a crisis of confidence not just since Sarah Everard’s murder during a lockdown, at a very difficult time for our country, but since the Wayne Couzens sentencing hearing. I hope that I can persuade the Minister to reflect on that particular issue and on how to grapple with what I am proposing in Amendments 108 and 109.
Then, of course, we return to Amendment 102, which calls for a statutory inquiry. It is not only my repeated call: it has been a call from so many people. I am so grateful to my noble friends in the leadership of the Opposition, to the noble Lord, Lord Paddick, and his noble friends and to the noble Baroness, Lady Newlove. She and my noble friend Lady Lawrence are, in my view, two of the greatest champions of victims’ rights, cutting across all vested interests, all party interests and all bureaucracy. The noble Baroness, Lady Newlove, has been with me in relation to this amendment from the very start; it is nearly 11 pm, and she is still sitting there and is with me now. I thank her so much.
This is a call for a full-blown statutory inquiry, not an administrative inquiry, under the Inquiries Act 2005. It follows resistance and hubris, I am sorry to say, from senior police leaders who, as we obviously know by this time, do not want an inquiry of this kind. To put it in context once more—I know that I am taking time, but I feel the need at least to do this argument justice—I mention the relatively recent inquiry and damning report of the noble Baroness, Lady O’Loan. Not much longer than six months ago, she spoke about the obstruction that she faced from the Metropolitan Police—including from the commissioner, I am sorry to say—in reporting on the Daniel Morgan scandal. I need not paraphrase, because noble Lords have heard from the noble Baroness in the past and her report, including the shortened press summary, is there for all to read, along with her speeches in Hansard. She faced obstruction, and said specifically in her findings that she knew that she had been hampered by not having the statutory powers that would have been available under the 2005 Act. I give that as a piece of evidence in my call for a statutory inquiry into the matters arising from Sarah Everard’s murder.
I also give the tin-eared and insensitive—to say the least—policing of the Clapham Common vigil. We know in your Lordships’ House that this was contrary to the original working and decisions of the borough command and the police service on the ground, who were working with women’s and victims’ groups to facilitate a peaceful vigil. Senior leadership and senior officers in the Met decided that was not to be. We can now trace back the timeline, because it is all in the public domain if one takes the time to look at the newspaper reporting. We can tell that those decisions about the disproportionate, tin-eared and counterproductive policing of the Clapham Common vigil would have been made at a time when the senior police leadership knew things that we only now know about Wayne Couzens, what he had done—because he had interviewed at this point—his policing career, and various things that obviously went wrong. I know that that is embarrassing, but that is why we must have a statutory inquiry. All institutions made up of humans feel the need to close ranks when things terribly wrong. That is precisely the moment when outside forces, including your Lordships’ House, need to prevent that closing of ranks.
Lord Carlile of Berriew (CB)
My Lords, I am pleased to follow the noble Baroness, Lady Chakrabarti, in support of her amendments. I want to start by paying tribute to the Minister of State, the noble Baroness, Lady Williams, who has been extremely accessible and helpful. In an attempt to resolve these issues there have been several discussions, some of them initiated by her, and I am sure that those of us involved would like to place our gratitude on the record. I thank her very warmly.
I reassure your Lordships that I do not wish to repeat what I said in Committee. Indeed, the amendment I put down in Committee has not been tabled on this occasion because of things that have occurred since then. Like the noble Baroness, Lady Chakrabarti, I regret very much that we are dealing with this important debate at such a late hour. Speaking at 11.10 pm takes me back to my days in the House of Commons in the 1980s when, routinely, we had debates at this time of night on matters of importance and principle—something that is now avoided because it is known to be poor practice. Furthermore, I must say to the usual channels, particularly the Government Whips, that there must be oblique reasons behind holding this debate at this time of night. If we look at the result of the last Division, which took place a few moments ago, it is clear circumstantial evidence that if you want to get out of the way something you think you would lose a vote on if it took place mid-afternoon, hold that vote—if it is to take place—somewhere around midnight and you will be quite safe. Those tactics do absolutely no credit to the reputation of this House and I regret very much that my representations were rejected a little time ago by the Government Chief Whip.
This is not just about Sarah Everard or Wayne Couzens. Without commenting on any pending case, there are proceedings pending in which it is alleged—it may not be proved, of course, and I do not wish to comment on any individual case—that other police officers have acted in every bit as outrageous a way as Wayne Couzens. I am in the lucky position of being in a family with five daughters. It may well be that our daughters, who would generally, I hope, defer to instructions given to them by police officers, will now feel unsafe on the streets of London, where they live, unless further protection is given.
This is about a broad principle. We know, because it has been proved in other cases—the noble Baroness, Lady O’Loan, for whom I have the greatest admiration, has demonstrated this in a major inquiry that she undertook—that the police will sometimes strain every sinew to avoid being held fully accountable. Unfortunately, the reaction to the Sarah Everard vigil was outrageous, as the noble Baroness, Lady Chakrabarti, said, and it never received the sort of apology it should have from the Metropolitan Police Commissioner, whose position in this leaves one very concerned. Where, in the end, does ultimate accountability for the police lie when people from the diplomatic and parliamentary division are the culprits in the most serious cases, as Wayne Couzens was?
That is a particular reason why I think it pretty outrageous to be asked to debate these important issues at this time of night. That is not a repetition of a Second Reading point; it is a discourse upon the way in which procedure in this House is, in my view, being abused on this Monday evening.
Baroness Newlove (Con)
My Lords, I have listened to everybody speak, and I appreciate that it is late at night, but I ask my colleagues around this Chamber to remember that we are talking about a human life that was horrifically and brutally taken. We have a family broken to bits. I have to say that, as somebody who has been through the criminal justice system, and as a mother of three daughters, my emotions are running high, because it was at this time of night that Sarah went missing and the searches began. Yet here in this Chamber we are arguing over having a statutory inquiry for the soul of Sarah Everard. We have colleagues here waiting to see whether we are going to divide, and saying that we are going on too long and are going round in circles. I feel ashamed to listen to these conversations, when we in this Chamber should be thinking of Sarah Everard and her family.
Let me tell you that it is not easy for the family; every day is hard. We are talking about a family that is traumatised. Any information that has come from any Minister or any government department will not be absorbed, because they are trying to get through every minute of every day. I am not saying this to be emotional—“Oh, calm down, my dear”—and I am not a legal eagle, as my fellow colleagues are who have just spoken articulately, but what I can say is that it is absolutely shameful that this Government are putting this inquiry into two parts.
That is not to say I cannot thank the Minister for taking the time to discuss this. The shame of it is that we are going to go through part 1, which deals with all the things that we already know, and that is why it is quite quick, and then, following advice to the Home Secretary, she or he—I have worked with several Justice Ministers as Victims’ Commissioner, and it is quite right that there is a carousel—will make a decision. It is unfortunate to think that an adequate and eloquent lady will give advice to the Home Secretary only for that person to yet again make a decision with no timeline.
It could be one of your daughters who they find. You could have to go through these media perceptions, asking what she was doing out late at night. Yet we protected an ex-police officer by saying that we do not know what has gone on and will have to find out. We are fighting here to discuss the place of a statutory inquiry. Given the public interest and all the window dressing from politicians across the House—because this Bill does go back to the Commons to be debated once again—I think that is shameful.
This House works best when we work together but tonight, at half past 11, I have been on my feet and travelling for 14 hours. I have health issues; I have taken my painkillers to be here to speak up for Sarah Everard. To walk a mile in the shoes of this family, in this horrific case shows that they are now relying on people giving messages, with no legal intervention. Yet we, as the unelected Chamber, can fight for this important inquiry. It is disgraceful that it is in two parts.
At this time of night, we are playing politics. Maybe the Government will win this Division and maybe we will, but it is shameful. Everyone in this Chamber needs to be aware that this could happen to them and they would go through the same system. It does not matter who you are—at the end of the day, we owe it to the public to make demands. We have asked the Government to order a statutory inquiry. Only then will the police be held accountable, only then will we stop police forces and officers marking their own homework and only then, speaking from my former role as Victims’ Commissioner, will they be truly accountable. In any other role, we would be sacked. We would be going through a civil investigation, a duty of care, vicarious liability—whatever it may be.
We are talking about a human life, a young woman who committed to go into a car with a police officer. For absolute assurance, for the public interest, for public safety, for our young and future generations, for our daughters and our sons, we owe it to help the public gain confidence in a system that is supposed to be there to protect us. Most importantly, what we see as the ethos of the police officers who put that uniform on has disintegrated.
We must have a statutory inquiry for the soul of Sarah Everard and, indeed, for the sake of humanity. If we do not, this will be a shameful decision that we will always regret having made.
Baroness O'Loan (CB)
My Lords, I am pleased to support this amendment in the name of the noble Baroness, Lady Chakrabarti, as well as those of the noble Lord, Lord Carlile, and the noble Baroness, Lady Newlove, who has spoken so eloquently and passionately on this subject. The Government claimed that the inquiry that was established would be quicker as a non-statutory inquiry; from my experience, that is not necessarily the case. The reality is that in phase 2 of this inquiry, if not in phase 1, we need an inquiry under the Inquiries Act 2005, which is not limited to the activities of one officer but embraces the very important issues of recruitment, vetting, funding and resourcing of anti-corruption activity, and the fact that the IPCC is so underfunded for the anti-corruption work that it has to do.
My inquiry and others before it have pointed out the serious deficiencies in the management and funding of those elements of police responsibility that are dedicated to identifying criminals within police ranks and dealing effectively with them. I reported in June last year. Given my experience of investigating matters involving the MPS, the IPCC and the Crown Prosecution Service over some six years, I do not believe that a non-statutory inquiry can act as effectively as one armed with the power to compel witnesses and the discovery of documentation. My panel was to report within 12 months of receiving documentation. We received our first documents in January 2015 and our last in March 2021. We reported three months later, saying:
“It is very important that lessons are learned about planning and preparation before the appointment of panels and similar public scrutiny bodies to avoid unnecessary distress to the families of those affected and unnecessary delays and costs to the public purse.”
I am sure that everybody’s thoughts tonight are with the family of Sarah Everard and with all those women who are listening, as the noble Baroness, Lady Chakrabarti, has said, and who will be affected by the outcome of this inquiry. Earlier, as we sat waiting for this amendment to be called, a number of Members—noble Baronesses—were discussing what it feels like as a sole woman to walk out of your Lordships’ House at this time of night and later, and try to find our way safely to the places that we stay in.
Baroness Bennett of Manor Castle (GP)
My Lords, I started off with a set of notes that said, “The Green group fully backs all these amendments”, and that we would have attached one of our names, had there been space. However, that is not really where we are now, is it? This is now a question of procedure. The noble Baroness, Lady Chakrabarti, was clear but extremely restrained in her tone when addressing how we come to be at this point tonight—it is now 11.34 pm. The noble Lord, Lord Carlile, was very blunt and clear, and we have heard passionately from the noble Baronesses, Lady Newlove and Lady O’Loan, about how inappropriate this is.
This is the service that your Lordships’ House is providing to Sarah Everard’s family, to women’s and girls’ groups, to the people who have campaigned and worked so hard on this amendment: to be here at 11.34 pm. A vast amount of work has gone into this and it is, at our current point, a travesty of democracy. Oddly enough, your Lordships’ House often manages to be quite democratic, but what we are doing at this moment is no way to run a country.
I have a whole lot more notes along those lines but will not deliver them, given the hour. I am simply going to move to the point of my speech: to move a Motion now that debate on Amendment 102 be adjourned to a subsequent day. I am told that this is unusual but possible.
Now, I can count; I can look around and see what your Lordships’ House looks like. But I believe there is a crucial matter of principle here that has to be asked. We are supposed to be the self-governing House. Noble Lords on the other side of the House have, I hope, listened closely to the noble Baroness, Lady Newlove. I am giving them an opportunity to provide a full, democratic chance for the entire House to make a judgment on this group of amendments, rather than doing it tonight at this hour.
Motion
Baroness Bennett of Manor Castle
That the House do adjourn the debate on Amendment 102 until another day.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Carlile of Berriew, for very effectively introducing the amendments. I also thank the noble Baronesses, Lady Newlove and Lady O’Loan, for their powerful contributions, in their different ways. I will have much more to say about the College of Policing code of ethics and the culture in the police service when we debate the amendments on the duty of candour.
I agree with other noble Lords that debating this issue at this time of night is not appropriate. I do not believe there was a conspiracy to make this debate happen late in the evening, but it was open to the Government Chief Whip not to begin this group at this time of night, but to debate it the next day—and I believe he should have done that.
On the substance of the amendment, the last non-statutory inquiry into the police—by the Daniel Morgan independent panel—took, as the noble Baroness, Lady O’Loan, said, more than eight years to complete, because it did not have the powers of a statutory inquiry under the Inquiries Act, and because, as we have heard, it faced obstruction by the police, leaving important questions still unanswered. The Macpherson report—the inquiry into the tragic death of Stephen Lawrence—took less than two years, and had a fundamental impact on policing. If the Government do not accept Amendment 102, we must assume that they want an inquiry that drags on for years and does not answer the fundamental questions. It is as simple as that.
For the protection of police officers and members of the public, those arrested should not be placed into a vehicle or taken into premises unless there are at least two officers present. Not only would Amendment 108 reassure women and girls, but it is also basic common sense. Similarly, Amendment 109, requiring the Secretary of State to issue codes of practice in relation to the transportation, as well as the detention, of people by the police under the Police and Criminal Evidence Act, is necessary. What could the Government’s objections possibly be? Perhaps we are about to find out.
Lord Coaker (Lab)
My Lords, I congratulate all noble Lords and noble Baronesses who have spoken so far in the debate. I shall focus on Amendment 102, which is incredibly important. The speeches by my noble friend Lady Chakrabarti, the noble Lord, Lord Carlile, the noble Baronesses, Lady Newlove, Lady O’Loan and Lady Bennett, and the noble Lord, Lord Paddick, have all, in their own ways, made important points to the Government.
The question for the Government is whether they will listen and respond to that, or whether they will just say, “This is the decision we have made, and whatever arguments are put to us, we’re not going to change”. This is one of those moments when they do need to respond. They need to change, and to listen to the arguments that have been made right across this Chamber and beyond—and, no doubt, by many of the people who will be listening. The reason I say that is that the statutory inquiry called for in Amendment 102, moved by my noble friend Lady Chakrabarti, has at its heart the need for the restoration of public confidence and trust.
There are seismic moments in our country: events that demand a response that goes beyond normal politics, beyond the normal debate between parties—events that demand a response from this country’s Parliament, its representatives both in this Chamber and in the other place, that meets the significance of what has happened. It cannot be that we simply say that we will have a Home Office-led inquiry, and that is okay. How will the public see that? How will individuals see that? How will the people who have responded to the horror, as we all have, of what happened to Sarah Everard, see it? This touched the nation’s conscience, the nation’s inner being. It wants us to respond to that and surely, at the very least, we should say that we will undertake a statutory inquiry, because that is the way the confidence of the public can be restored. It is the way we can ensure that, as we move forward, the public can be reassured that that confidence and trust can be restored in the state, in its broadest sense—not just Parliament but the organs of the state: the justice system, the police, and all those who have responsibility because of what we legislate for here.
The noble Lord, Lord Carlile, made what I thought was the crucial point—the one that an ordinary member of the public, frankly, from whatever part of the country, whatever their occupation, would make. What happens to that inquiry if a witness says, “I am not coming” and that inquiry is obstructed? What happens if the Home Secretary says, “It is a very important document but we cannot release it because it is sensitive”? What would the Government’s Home Office-led review be able to do if a witness refuses to attend, if the release of a document is refused, if the police, for example, refuse to co-operate? Answer from the Government there is none, other than a vague platitude: “We expect that co-operation to happen; we expect that to take place; we expect all the documents to be released.” A statutory inquiry, however, would have no such problem. There could be no obstruction, no documents withheld, because that is the point of a statutory inquiry. In the court of public opinion, let alone any other court, people will say, “Why are they not doing that? What possible reason is there for the Government not to respond in that way?” I do not understand it.
I am a Labour Peer, a Labour politician. That does not mean that I think everything the Conservative Government do is terrible; but sometimes, it does not matter where you are on the political spectrum—you have this sense of incredulity, of disbelief. Why is the system refusing to do the obvious? Why is the system not responding in the way that anybody would expect it to, in the face of the horror of what happened to Sarah Everard? We cannot undo the past, but we can make the future. I think that people would expect nothing less from us, nothing less from this Chamber, than that we say in response to the horror of what happened that the public demand a statutory inquiry that compels co-operation, documents and witnesses. There are all the other arguments that go round and round, all the other arguments that can be made, but that is the nub of it.
I say to my noble friend Lady Chakrabarti that this is one of the most fundamentally important amendments we have discussed on this Bill. Of course, there will be women—daughters, young women, girls—who want this, but there will also be a lot of men, if not the vast majority, who will be demanding that statutory inquiry for the women and the girls of this country. We all want it.
Lord Coaker (Lab)
I think the public would expect a statutory inquiry. I expect a statutory inquiry and I believe the vast majority of Peers would as well. The Government may set their face against it, but I hope my noble friend will put it to a vote. We can test the opinion of the House and see where that takes us if the other place is caused to think about it again. The women and girls of this country, as well as the country itself, deserve a statutory inquiry, and we should vote for it tonight.
Baroness Williams of Trafford (Con)
My Lords, I share noble Lords’ frustration that at a minute past midnight I am standing up to respond. I do not think anyone could accuse me of filibustering or frustrating any processes today. It was very unfortunate that we did not start this Report stage until nearly 4 pm because Members were discussing procedure. It is very frustrating that we are discussing such an important topic so late at night.
That said, I thank the noble Baroness, Lady Chakrabarti, for raising this incredibly important issue, and the noble Lord, Lord Carlile. I thank the noble Baroness, Lady O’Loan, for sharing the experiences of her time as chair of the Daniel Morgan inquiry. I again thank the noble Lord, Lord Carlile, my noble friend Lady Newlove, and the noble Baroness, Lady Chakrabarti, for the opportunity that I have had to discuss this issue with them. It is so important that Sarah’s family and the public understand how a serving police officer was able to commit such a senseless crime so that we can stop it ever happening again and restore confidence in our police forces. I think all noble Lords want that.
On 5 October, the Home Secretary announced her intention to launch a two-part inquiry into the circumstances surrounding Sarah’s murder. The first part of the inquiry will look at Sarah’s murderer and his tenure at the Metropolitan Police leading up to his conviction, as well as assessing any missed opportunities to hold him to account for his conduct. The second part of the inquiry will look at any specific issues raised by the first part, which is likely to include wider issues across policing, including, but not limited to, vetting practices, professional standards and discipline, and workforce behaviour.
This is the opportunity to look at any systemic flaws in vetting or issues around policing culture that were highlighted in the amendment. We expect that the separate inquiry established by the Metropolitan Police Commissioner, being led by the noble Baroness, Lady Casey, into the culture and standards of the force will feed into part two of the Home Office-established inquiry.
On the point raised by the noble Lord, Lord Coaker, about witnesses giving evidence, the police forces for which Sarah’s murderer worked will be witnesses to this inquiry, and we expect them all to comply with it. Since February 2020, when we amended the law, police officers have been under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. Failure to do so could amount to misconduct and lead to disciplinary action—something which, during the Daniel Morgan inquiry, was unfortunately not available.
On 22 November, the Home Secretary announced that the chair of the inquiry would be the former Lord Advocate, the right honourable Dame Elish Angiolini QC. Following her appointment, the terms of reference of part 1 of the inquiry have been agreed with her, and they were published on GOV.UK this morning, as noble Lords have said.
The form of part 1 of the inquiry has been discussed with Dame Elish at length, and she agrees that a non-statutory inquiry is the best option to enable her to operate swiftly, allowing greater flexibility to gather evidence relating to Sarah’s killer’s policing career, without formal set-piece hearings. It is imperative for Sarah’s family and the public that we get answers as quickly as possible—I do not think that anyone demurs from that. This will enable Dame Elish to start part 2, looking at policing more broadly, in short order after the conclusion of part 1, which I know the amendment of the noble Baroness, Lady Chakrabarti, seeks to achieve.
Also agreed with Dame Elish is that, should she feel that she cannot fulfil the terms of reference operating on a non-statutory basis, and should official advice concur, it can be converted. I am not sure that the Sky News quote entirely reflects the Home Secretary’s words. That point about the conversion is set out in the terms of reference, and it is not only that: I can advise the House that, in coming to a decision on whether to convert the inquiry into a statutory inquiry under the Inquiries Act, the Home Secretary will be strongly guided by the views of Dame Elish. So, to quote the noble Lord, Lord Coaker, we are not saying, “No, we have already decided”. We have not. Under the Inquiries Act, the Home Secretary is required to consult the chair on any decision to convert the inquiry, and the chair’s views would be expected to hold considerable weight. I hope I have been able to satisfy noble Lords on that point.
I understand the noble Baroness’s point that confidence in the police among women, particularly younger women, has been rocked by Sarah’s murder and other cases that are coming to light—I share those views. This is analogous to the impact that the failings in relation to Stephen Lawrence’s tragic murder had on black communities. I understand how powerful it was for Sir William Macpherson to hold the Metropolitan Police to account in public over 20 years ago and I agree entirely that women deserve answers and, moreover, assurance that they are safe in the hands of the police.
I do not think, however, that we should be tying the hands of Dame Elish and the Home Secretary on the scope or nature of part 2 before part 1 has even started in earnest. It is important that these considerations can be informed by Dame Elish’s emerging findings from part 1; the work of the noble Baroness, Lady Casey; and the policing inspectorate’s thematic inspection of vetting and countercorruption. Only then can we ensure that part 2 looks at the critical issues for policing and does so in a way that allows those affected, including victims, to have their voices heard.
I reassure this House that the Home Secretary will consult Dame Elish on the scope of part 2 and the form that it should take to proceed efficiently, effectively and with the confidence of those whose trust in policing has been eroded. Specifically, Dame Elish’s view and official advice will form the basis of whether the Home Secretary will put part 2 on a statutory footing.
The noble Baroness, Lady Chakrabarti, has prayed in aid the experience of the noble Baroness, Lady O’Loan, with the Daniel Morgan inquiry but, since the evidence-gathering phase of that inquiry, we have—as I said earlier—introduced a duty of co-operation on police officers, which means that failure to co-operate with an inquiry or similar could now be a disciplinary matter, with dismissal being the ultimate sanction possible. There are now sanctions that were not available before.
Amendment 108 seeks to address legitimate concerns that individuals, particularly women and girls, may have at the prospect of being arrested or transported in a police vehicle by a lone officer. The noble Baroness is absolutely right to highlight how important it is that police officers use their powers of arrest legitimately and in line with statutory guidance, and to recognise how public confidence in the police has been shaken by the appalling circumstances of Sarah Everard’s murder. I understand the concerns raised by this case, and the Government have been very clear that they intend to take action as a result. However, the law does not take a detailed view on the way officers use their powers, as long as they are doing so lawfully and legitimately. I do not want to see officers’ discretion over the legitimate use of their powers restrained in ways that could lead to individuals escaping justice or evidence being lost, as could be the case if officers were legally prohibited from transporting arrested individuals alone.
As for Amendment 109 and the noble Baroness’s proposed addition to the PACE codes—which she now attributes to the noble Lord, Lord Carlile—to cover transportation of arrested persons, I will commit to keep this suggestion under consideration when we next undertake amendments to the code. I am aware that some forces, including the Met, have issued guidance to their officers for situations where they may need to approach a member of the public while operating alone. This is only the beginning of this conversation, and there will be more for all forces to do to ensure that the public, and women and girls in particular, have confidence in the way officers use their powers as they carry out their vital—
Lord Carlile of Berriew (CB)
I apologise for interrupting the noble Baroness, and I am grateful for what she has just said, but I want to go back to a previous point, if I may, because I think we would like an answer to the question I am going to pose at some point in her speech.
During the course of her comments earlier, the Minister said—and I think this was a little bit of movement—that the Home Secretary would be “strongly guided” by the views of Dame Elish Angiolini on whether the second part should be converted to a statutory inquiry. My question, and it is really a legal question for which I apologise, is this: if Dame Elish makes a reasonable request for conversion to a statutory inquiry and unreasonably the Home Secretary refuses that reasonable request, would that refusal then be subject to judicial review, and do the Government recognise that to be the case? I am sure that the question I have posed is a typical barrister’s question, in that I know the answer to it, but it would be nice to hear from the Minister that that answer is recognised because it may make a difference to the attitude of some noble Lords, as to how they view this issue, if it comes to a Division of the House.
Baroness Williams of Trafford (Con)
In my limited legal knowledge, a judicial review questions the process rather than the decision, so I am sure a judicial review could be sought on the process by which the Home Secretary refused, despite the advice of the inquiry chair. I think it is important to bear in mind that the Home Secretary has chosen Dame Elish because she has confidence in her, and the way in which they work together through this inquiry process will be absolutely crucial, not only to its outcome but to the confidence of both women and the public in general. That is, I think, the answer that I could give at this point. The noble Lord is looking a little bit doubtful.
Lord Carlile of Berriew
I apologise for intervening again. I have got my second wind; it is now tomorrow, which is not commendable. It is a simple question: is it recognised by the Government—and it may be that the Minister would have to take advice on this, which I recognise she might get from the noble Lord sitting next to her—that an unreasonable refusal by the Home Secretary would be, potentially at least, judicially reviewable?
Baroness Williams of Trafford (Con)
The noble Lord is talking in theory. Anything is possible. I cannot say whether, in the circumstances of the Home Secretary’s refusal and Dame Elish’s advice, the outcome would be reasonable or unreasonable, but it is important that we go into this with the Home Secretary very clear that she will be guided by Dame Elish. That is the thing to take away from this.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords who stayed, even those who may have stayed under sufferance—I hope they will forgive me and understand how important this issue is to so many people beyond SW1.
Of course I have been in two, three and 15 minds about how to handle this, not least in the light of the previous vote on the adjournment, but I have to go back to the substance. I have to pay due respect to the speeches of the noble Baronesses, Lady Newlove and Lady O’Loan. I am not sure, in the light of their testimony, that I could suddenly pretend to be the grand old Duke of York—it is one thing to take your Whip on an adjournment vote. I believe in my heart that there will one day be a full-blown statutory inquiry into the wider issues that have just been highlighted by this horrific case. Noble Lords will have to tell their colleagues, friends and family how they voted when they first had the opportunity to do this. I have seen this time and again in my adult lifetime, with Governments and politicians resisting and resisting, and eventually, maybe years later, the argument for justice and the rule of law becomes irresistible.
On two points that the Minister made by way of reassurance, I am glad that there is now the new ethical duty for police officers to co-operate, but it is a disciplinary matter that would ultimately be in the hands of the police to deal with. If the police officer who does not want to co-operate, as is often the case, decides to retire, the ultimate sanction of dismissal will hardly give comfort. What if they are at the senior-most levels of policing in their non-co-operation? That cannot be equated with the power that statutory inquiries and judges have to compel witnesses or they are committed for contempt.
As for being “strongly guided” and “taking into account”, it is not the Minister’s fault, but there was an opportunity for the Home Secretary to announce that Dame Elish would have the final word on this, and we have not even gone that far. We are “strongly guided”, but we are not going to give this decision to Dame Elish, for whatever reason.
With respect, I do not think that we have gone far enough. I know that I may go down in flames, but I have to speak clearly to people outside this House. I have to do this out of respect for the noble Baronesses, Lady Newlove and Lady O’Loan. I want people to know that we stood for them, for the rights of women and girls in this country, and indeed for the reputation of the many decent police officers, including those whom we see here every morning and night when we come and go. We owe it to their honour. The right thing to do is to have a statutory inquiry, and I would like to test the opinion of the House.