Grand Committee
(12 years, 6 months ago)
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Welfare Reform Bill
(12 years, 6 months ago)
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The Deputy Chairman of Committees (Baroness Gould of Potternewton)
My Lords, may I remind you of the new procedure during Grand Committee on this Bill for Divisions in the Chamber. Members who have registered with the Clerk of the Parliaments may vote in their places in the Grand Committee, provided they are present in the Grand Committee when the Question is put in the Chamber after three minutes. Members who have not registered or who are not here at the three-minute mark will not be able to vote in their places. I also remind Members to be sure that they speak up but do not touch the microphones. Before I call the first amendment, the noble Lord, Lord Freud, wishes to say something.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, I thought it would be convenient to touch on the timetable. There has been discussion between the usual channels on the best way to take the rest of proceedings. We have agreed, subject to our best endeavours and without overriding anything, that there will be 17 Committee sittings, finishing on 28 November. The main items will be taken as follows. ESA time-limiting will be debated today; the Social Fund issues on 10 November; the PIP on 14 and 16 November; the benefit cap on 21 November; fraud and error on 23 November; and child maintenance and changes to the Child Poverty Commission on the last day, 28 November. I will circulate this timetable to all Peers after today.
Lord McKenzie of Luton
My Lords, I thank the noble Lord, Lord Freud, for running through that timetable. Our Front Bench is signed up to using our best intentions to make sure that we stick to it. It is helpful for those who are not necessarily here for every bit of the Bill to know roughly what the schedule is. My Whip, my noble friend Lord McAvoy, has asked me to stress that these are firm intentions but not a straitjacket.
Baroness Morgan of Drefelin
My Lords, it is incredibly helpful for those of us on the Cross Benches to hear from the Minister what the timetable for the subject matter for debates might be. Can I also point out how difficult it might be for some of us, with the Health and Social Care Bill being in Committee at the same time as the Welfare Reform Bill? I have amendments down for both Bills and it will be difficult. I know that is true for many Peers.
The Deputy Chairman of Committees
My Lords, before I call the noble Lord, Lord McKenzie of Luton, can I point out that within this group is government Amendment 72? I have to inform your Lordships that if that amendment is carried, Amendments 73 and 74 will then not be spoken to because of pre-emption.
Clause 51 : Period of entitlement to contributory allowance
Amendment 71M
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, in speaking to Amendment 71M, I shall speak also to Amendment 71P. I shall speak to the other amendments in this group when they have been introduced.
Clause 51 is one of the most controversial and unfair provisions in the Bill. It seeks to limit contributory ESA to 365 days in aggregate in respect of the same reference period. The clause further seeks to have the clock running for this currently so that days of receipt to date count towards the total. Our amendment is modest in that it seeks to remove the reference to 365 days and replaces it with an order-making power for which the prescribed number of days must be at least 730—that is, two years. This formulation provides the route to ensuring that any time-limiting of contributory ESA must be based on a proper analysis and evidence, rather than the arbitrary approach that the Bill adopts.
To justify a time limit for ESA we need to be satisfied that it is reasonable to expect people to return to work within the period, or to be fit for work and transfer to the JSA regime or be subject to work-related requirements in the universal credit regime. This judgment is not without difficulty, given the multiplicity of circumstances that cause individuals to be allocated to the work-related activity group—the WRAG. They include mental health and fluctuating conditions and depend on the level of support that is available to individuals. No one is arguing for a system that enables individuals to stay in the WRAG for ever without making any effort to move closer to the labour market. However, is it not the case that, when placed in the WRAG, there is a prognosis of how long somebody will stay there, and that prognosis is reviewed for its appropriateness before a claimant is moved to the JSA regime or, in the future, to the all work-related requirements of universal credit or, indeed, to the support group?
Therefore, in essence, the system has an individualised assessment of how long somebody may need to remain in receipt of contributory ESA if the national insurance conditions are satisfied. If the Government have confidence in the WCA process, why not rely and build on this approach? Is not the answer that this is really not about fairness or making reasonable judgments about how long people need to remain in the WRAG but all about cost savings and removing entitlements to which individuals may have contributed throughout their working lives?
A lot of figures have been swirling around this matter but we know that government estimates show that by 2015-16 700,000 people will be affected by time-limiting. Forty per cent of these will not qualify for means-tested benefit. Of those who do, can the Minister give us an estimate of those who will receive maximum income-related ESA and possibly the distribution of those who will not? We know that 94 per cent of contributing ESA claimants in the WRAG have a claim, the duration of which is 12 months or more. From the Pathways programme, we know that between 2005-06 and 2008-09 only between 25 and 30 per cent of participants found work within 12 months. There are strong representations, for example, from Macmillan to the effect that for many cancer patients 12 months is not a long enough period before they return to work. It maintains that three-quarters of people with cancer placed in the WRAG still claim the benefit 12 months later.
Of course, the Government’s defence of all this is that income-related ESA will still be available. However, the thresholds for the means-tested benefit is low, and entitlement could be denied if a person’s partner earned as little as £7,500 a year or worked more than 24 hours a week. That is another couple penalty and a significant disincentive to work. The Government’s own assessment is that the average change in income for those who lose out from time-limiting is a loss of £52 a week—a staggering amount—with some losing as much as £94 a week.
We can accept that, as with JSA, an argument can be made for contributory ESA to be subject to a time limit, but the line must be drawn at a point where it is reasonable to expect that people will be able to move on from the support and protection of the work-related activity regime. Three hundred and sixty-five days is clearly far too short a time for this yardstick. Seven hundred and thirty days is, it is accepted, an arbitrary figure to an extent, but the real task is to do the analysis, produce the evidence and do the work so that a proper time limit can be established. This evidence-based approach is what the DWP is usually so good at, and it is to be regretted that it is being abandoned in this situation.
Although not spoken to yet, we wholeheartedly support the proposition that the assessment phase should not feature in the number of days counted for any limitation period. The basic JSA rate is all that is received during this period and claimants do not know whether they will end up in either the WRAG or the support group.
Similarly, we support the amendments that prevent any days arising prior to the introduction of the legislation counting towards any limitation period. Can the Minister tell us how many people will lose contributory ESA at the point that these provisions in the Bill come into effect? Writing to tell people that this restriction is probably on its way—and we will have to see the resolve of the Liberal Democrats on this issue when we have the opportunity to vote—is all very well but helpful advice to the effect that the DWP cannot offer any guidance before the legislation becomes law must have been received with some consternation. Perhaps we can ask what feedback has been received.
I have not spoken to Amendment 71P, which is by way of a probe. The notes provided by the DWP state that people in the support group will not be affected by the proposals. Is this correct? Take the case of someone who starts in the WRAG but because of a deteriorating condition transfers to the support group. Prior to any time limit in legislation taking effect, contributory ESA would have been payable throughout, based on satisfying the first and second contribution conditions at the start of the claim. But if entitlement ceases as a result of the time-limiting rule, will the claimant not have to satisfy the contribution conditions afresh? Satisfying the second contribution condition may not be a problem because of crediting, but the claimant could be out of time to take advantage of the last tax year in which the national insurance contributions were paid, the last time when the individual was actually earning in excess of the LEL.
I have a couple of further questions. When somebody is migrated on to the ESA from contributory incapacity benefit, will the national insurance contribution conditions be treated as satisfied or will they have to be met again? The Minister will recognise that somebody who in later years has been treated as having limited capability for work may well have been credited with sufficient national insurance contributions to satisfy the second condition, but may struggle to satisfy the first condition of paying contributions amounting to 25 times LEL within the previous three complete tax years. When somebody is transferred from contributory incapacity benefit to contributory ESA, is it intended that the 365-day clock starts at that point? What analysis has been undertaken in respect of this in planning transfers to ESA? What is the position of somebody who is no longer in the WRAG because they are considered to be fit for work and currently, therefore, are on JSA? Will they be eligible for contributory JSA, albeit for a maximum of six months? Further, policy briefing note 4 makes it clear that further changes are planned to the employment and support allowance to align the earnings rules and taper with universal credit. With contributory ESA in steady state, accepting for this purpose the 365-day time limit, what analysis has been undertaken of the costs and benefits of this? Is it intended to be cost-neutral?
We have a number of other amendments to consider. I have no doubt that we will hear the refrain from the Minister, “There is no money. These changes are vital for deficit reduction”. But there is always choice. The question is: why make these particular cuts and why is this particular burden to be borne by those who by definition are not currently able to work and, moreover, have paid their dues in the past? I beg to move.
Lord Wigley
My Lords, I must say that I have considerable reservations about this clause in general, and these amendments touch on a number of them. I have concern about the provision for time-limiting the contribution-related ESA to 12 months, as is provided by this clause. It means that ESA claimants with a spouse or partner working 24 hours a week or more will not be eligible for the benefit. I believe that the time-limiting ESA is a serious disincentive to work for the partners and carers of ESA claimants, which leads to a situation in which unemployment is more financially sustainable than work, which must be a considerable worry to us all.
I further believe that the time-limiting of ESA punishes working families where one member is claiming ESA. Does the Minister accept that those with a working partner or with other income or capital, possibly up to as many as 400,000 people, will lose entitlement to the benefit completely if these provisions go forward? I urge the Government to think again on this.
Baroness Morgan of Drefelin
My Lords, I have the second amendment in this group, Amendment 71N. It is a big and complicated group. I have also put my name to Amendments 73, 74 and 75. I am not going to say too much about those because the noble Lord, Lord Patel, is going to introduce them in some detail. I support his opposition to clause stand part, and I am sure that we will come to discuss that more generally.
Many people who are placed in the work-related activity group have a deteriorating condition—say, Parkinson’s disease. Some people with motor neurone disease or some forms of cancer have been told that they have only two or three years to live, so it is possible to be in the work-related activity group and still have a very limited prognosis. The purpose of this amendment is to allow certain groups to be exempt from time-limiting of contributory employment and support allowance. This is a probing amendment in many ways, but I would prefer there to be no time-limiting at all, to be clear. If we do have time-limiting, this amendment is intended to safeguard support for people who have had to give up work due to a degenerative condition or terminal illness—for example, Parkinson’s disease, motor neurone disease or cancer. This measure will affect people with a degenerative condition who qualify for the work-related activity group but whose benefit expires before their condition deteriorates, to the extent that they would be eligible for the support group. It will also affect people with a terminal prognosis of over six months who will qualify for ESA under exceptional circumstances.
The Government had originally promised those whose contributory ESA claim had ended at 365 days as their condition deteriorated that, if they qualified for the support group on either functional or terminal illness grounds, they would become eligible again for ESA. This commitment was made in response to a question from Dame Anne Begg MP by Chris Grayling MP. However, there are currently no provisions in the Bill that will allow for someone to restart a contributory claim after their 365 days have expired. Many people with degenerative conditions or a terminal prognosis of more than six months will find themselves without support in the final stages of their illness if they have savings or a partner in work, and therefore cannot seek support from means-tested benefits. People with a degenerative condition will face the impossible predicament of trying to remain in work for as long as possible in order to ensure that they enter the support group within a year of beginning their claim, or having to stop work and focus on managing their condition and thus risk seeing their benefit run out after one year. What a position that we contemplate these people being in.
I use the example of a person with Parkinson’s disease that was lent to me by the Parkinson’s UK charity. It described the following client. He had worked until the symptoms of his condition became too severe for him to continue. He explained that although he had good days, he had bad days. He would only have good days if he carefully conserved his energy. He said,
“but I’m better when I’m not doing anything. It sounds like a skiver’s charter but what it means is that the energy or concentration reserves needed to do simple physical or mental tasks are quite low so any difficulty encountered quickly drains those reserves and I get into a sort of ‘closing down state’. My thoughts slow down. My movements slow down. My breathing gets laboured. I want to sleep. I find it hard to swallow properly. I get headaches and experience a feeling of desperation”.
This proposal promises to create a two-tier system. The rules around national insurance contributions are extremely complicated. I do not claim to be an expert in any way, so it is hard to present a hard-and-fast case, but one scenario that might occur is that someone whose condition deteriorates to the extent that they are eligible for the support group on day 365 of their claim receives indefinite support, while someone who becomes eligible on day 366 gets nothing. What action is the Minister taking to ensure that the Government honour their commitment that those who become eligible for the support group after their 365 days’ claim has expired can receive support through contributory ESA?
I understand that there are exceptional circumstances which are catered for in legislation, in the Employment and Support Allowance Regulations 2008. Someone with a life-threatening condition who would not meet the normal criteria for ESA can qualify under exceptional circumstances and be placed in the work-related activity group. The example given in the guidance for healthcare professionals carrying out the assessment is someone with motor neurone disease. As I have said, we know that the average life expectancy post-diagnosis for someone with motor neurone disease is one to four years. A 62 year-old client of a citizens advice bureau in the south-east had worked all his life, until he became too ill to carry on. He was diagnosed with motor neurone disease and experienced chronic fatigue and reduced mobility. He applied for ESA and was placed in the work-related activity group. What does the Minister intend to do to ensure that people in that situation, who qualify for ESA under these exceptional circumstances, do not lose out as time-limiting is introduced?
The equality impact assessment accompanying the proposal to limit payment of employment and support allowance to people in the work-related activity group partly justifies that measure on the basis that ESA is a “temporary benefit”. This ignores the reality that it is impractical to expect someone with a terminal prognosis to return to work. We are seeing people with a terminal prognosis being put in a work-related activity group, which is being classified as a temporary benefit. If ESA is a temporary benefit, what action is the Minister planning to take to support those for whom a return to work is not an option?
I, like many here, find these clauses desperately unfair to some of the most vulnerable people in our society. I oppose time-limiting for 12 months for ESA, which appears to me to be completely arbitrary. It is not appropriate that we should be looking at this implementation retrospectively. The assessment period should not count towards any time-limiting and it is not appropriate that people coming out of the support group, if they only have a month left of their time-limiting, should be expected to find work in a month. This is an extremely important debate and I hope very much that the Minister will be able to come back fully with answers to my questions.
Baroness Thomas of Winchester
My Lords, at this stage, I am not going to go into all the arguments about the time-limiting of ESA to one year. My noble friend Lord German will address the main issues in a short while. I shall speak to my Amendment 72A to my noble friend the Minister’s Amendment 72, the purpose of which is to question the whole business of the retrospective nature of this provision. Under this part of the new clause, the clock has already started ticking for existing claimants, regarding their entitlement to contribution-based ESA in the work-related activity group rather than in the support group, who have been receiving the benefit for 12 months or more. For them, their claim will stop as soon as the Bill becomes law, which is estimated to be April of next year. By starting the clock well before Parliament has made its decision on the Bill, the Government seem to be acting like a private insurance company that changes the rules of someone’s policy after they have made the claim.
However, this does not seem to have been the plan in October last year. If one looks at the Spending Review 2010’s policy costings, published in October last year, on page 6—it is repeated in the Library briefing pack on the Bill—it is stated at the first bullet point that,
“for existing contributory ESA customers, the time limit will apply at the point they reach one year including the assessment phase. Those with a claim duration of one year or more when legislation comes into effect will have their benefit time-limited immediately and will have at least 12 months to prepare for the change”.
Perhaps the Minister can throw some light on why and when the Government changed their minds and decided to make this provision retrospective—thus allowing hardly any time at all for some claimants to prepare for change. Just to be clear, someone whose claim started in April this year may find by the time the Bill becomes law in April next year that their claim will cease immediately.
Parliament has always deplored retrospective legislation. In 2009, the Constitution Committee of your Lordships' House, in its report on the Banking Bill, drew attention to the need for there to be,
“a compelling reason in the public interest for a departure from the general principle that retrospective legislation is undesirable”.
At least the letter to claimants that was sent out recently by the DWP is headed:
“Possible changes to your ESA”,
and states that the changes the Government want to make have not yet been approved by Parliament. The letter continues by providing the ramifications of the change. I gather that many claimants who have received such a letter are telling citizens advice bureaux up and down the country that they do not know what this letter means for them, and that they are very worried by it. They have good cause to be worried. Not only are the Government breaking the understanding that national insurance contributions—perhaps paid for years and years—protected a person against the loss of employment on health grounds, but many claimants, as we have heard, are likely to be left with only their partner’s extremely modest income, which may push them out of eligibility under the means-tested ESA.
I turn back to the policy costings document of October 2010. Under the heading, “Uncertainty”, we read that the migration from IB to ESA was the cause of particular uncertainty. We now know that a high proportion of IB claimants are being found to be fit for work as a result of the migration to ESA, in spite of appeals. I therefore ask my noble friend whether the Government can now start to quantify savings that might be made on the ESA bill, in spite of an increasing JSA bill—given high unemployment—and whether they will consider reverting to their original plan and drop the retrospective nature of this clause.
We all know of the need for the Government to cut public spending by an eye-watering amount as soon as possible. The Government’s argument may be that JSA is time-limited, so why not ESA? However, in my view, a claimant’s health is a much more emotive subject for their employment—or lack of it—and being ill can be a very expensive business. Using retrospection in this way, when it directly affects someone’s income in an unforeseeable way, seems to be thoroughly bad practice. Is it really good governance to cut massive corners by bringing in this policy in such haste?
Lord Patel
My Lords, I thank noble Lords who have supported my amendments. There are three amendments in my name: one to ensure that any period of time-limiting contributory ESA restarts following any period a person spends in a support group, one to ensure that the assessment phase is not included in any time limit of contributory ESA, and one to ensure that time-limiting contributory ESA for those in the WRAG is not applied retrospectively.
Many groups, including Macmillan, Disability Alliance and others, oppose the introduction of a 12-month limit to the amount of time someone is able to claim contributory-based employment and support allowance for those in the work-related activity group. Macmillan, the Disability Benefits Consortium and others in the wider disability sector oppose the principle of time limiting ESA. People with a disability or illness who have paid into the system should be able to receive support for as long as they meet the eligibility criteria for ESA and are unable to work due to their condition.
Clause 51 amends the Welfare Reform Act 2007 to introduce a 12-month limit to the amount of time a person is entitled to contributory ESA for those in the WRAG. In my view, Clause 51 should be removed from the Bill. Removing this clause would ensure that disabled people would continue to receive critical financial support for as long as their disability or long-term condition limits their ability to work.
The Government’s own figures show that 94 per cent of people in the WRAG will need ESA for longer than 12 months. Those affected, including 7,000 cancer patients, will lose up to £94 a week in vital support. The Government’s proposal is based on their objective to make savings. However, they have provided no evidence to demonstrate that a 12-month time limit is reflective of the amount of time people in the WRAG need in order to be able to return to work.
The coalition agreement promised, I believe, to protect the vulnerable from spending cuts. In his first party conference speech, the Prime Minister last autumn said:
“People who are sick, who are vulnerable, the elderly—I want you to know we will always look after you. That's the sign of a civilised society, and it's what I believe”.
It cannot be right for the Government to propose such a significant policy change without providing evidence that the measure is appropriate and reasonable. Can the Government publish evidence to demonstrate that a 12-month time limit reflects the likely needs of people in the WRAG? What organisations or experts were consulted before the decision was taken to introduce a time limit for contributory ESA?
The time limit will be imposed on people who are in the WRAG. Those in the WRAG are people who, following a work capability assessment, have been found to be not fit for work due to their disability or illness. While those in the WRAG are expected to carry out some work-related activities in order to help them return to work, they are still considered to be not fit for work. If following the WCA they had been found to be fit for work they would be ineligible for ESA and placed on jobseeker’s allowance.
People in the WRAG could still be severely disabled or disabled, as is the case with people recovering from aggressive cancer treatment and other debilitating conditions. I have one example. Martin was diagnosed with primary progressive MS in February 2007. He continued to work until November 2009, albeit with difficulty. He cannot walk or stand up, has incontinence problems and suffers badly with fatigue and muscular weakness in his legs and back. Martin recently received a letter from the DWP outlining how the Government are seeking to change the rules of ESA and impose a time limit on the benefit. He said:
“The real sting in the tail is that the ‘clock’ starts ticking from the date you first ever started receiving the benefit. In my case that is since June 2009, so some 27 months, so in their eyes I am 15 months over the limit! Therefore, my payments would stop immediately once the policy comes into force next year”.
Poor old Martin. What is he going to do?
Currently, no one is placed in the WRAG indefinitely. Only those who meet the strict eligibility criteria for ESA and are unable to work will be able to continue to receive ESA. People in the WRAG can be called for an assessment at any time and will lose the benefit if they are found fit to work. The government proposals will affect only those vulnerable people who are too unwell to work. The vast majority, patients with cancers and others, want to work if they are able to and do not need an incentive. Unlike incapacity benefit, the WRAG or ESA is clearly focused on supporting people into work and receipt of the benefit is conditional on claimants taking agreed steps on activity to move towards work. That can include training, education or condition management. Claimants who take the agreed steps to return to work should not be penalised simply because they need longer than one year.
Many disabled people will simply not be fit enough to return to work after just one year. For example, people with cancer will often experience side-effects of their condition and treatment, such as severe fatigue or depression, for many months and in some cases years, even after their treatment is finished. People with cancer face a range of barriers that impact on their ability to return to work. They can experience debilitating physical and psychological effects from cancer and its treatment, including severe pain, fatigue, nausea, fever and diarrhoea. The majority, 53 per cent, are not advised by medical professionals about the impact of their cancer diagnosis on their working lives and how they can manage their condition. They are not routinely offered the range of back-to-work services they need, such as counselling, retraining and workplace advocacy. They are less successful in securing workplace adjustments to which they are legally entitled and which would help them return to work. This is likely to be linked to the fact that just 43 per cent of employers know that people with cancer have legal protection against discrimination.
Means-testing thresholds are such that thousands of people will lose all their ESA if their partner earns as little as £150 a week. The Government’s own estimates predict that 700,000 people will be affected by time-limiting by 2015-16. Of those who actually lose out, 51 per cent are in the lowest third centile for income; the average drop in income would be £52 a week, but for those in the lowest centile—the lowest third—this figure is £35 a week, a significant amount of money for people struggling to make ends meet. What estimate has the department made of the number of people who will fall into poverty as a result of time-limiting contributory ESA?
Furthermore, people who are currently covered by special rules and can reasonably be expected to die within six months are automatically placed by the support group and will not be affected by time-limiting. However, people who have a terminal diagnosis but who are expected to live for longer than six months currently can still be placed in the WRAG and will therefore be subject to time-limiting. This means someone who has a prognosis of two years and is placed in the WRAG could lose their support after one year, even though they may have only one year left to live. Many of these people will not go on to claim a pension and therefore may receive only 12 months of ESA for all their national insurance contributions. People who lose their contributory ESA due to time-limiting will not be able to claim contributory ESA if they have subsequently become terminally ill and are covered by special rules. This is despite the assurances given by the Government that people who are terminally ill will not be affected by time-limiting.
The Government have claimed that there are alternative means of support available for those who lose their ESA, such as housing benefit or tax credits. However, these are dependent on personal circumstances and many cancer patients will be ineligible. For instance, a couple without children who own their home will not be eligible for housing benefit and they will qualify for tax credits only if the working partner works more than 30 hours, which may not be possible due to caring commitments. My question, therefore, is: can the Government publish evidence to demonstrate what alternative means of support is available for people who lose ESA and give the number of people who are eligible for this support?
For cancer patients, financial worries are second only to worries about their condition and treatment. I have serious concerns about the impact that time-limiting will have on the psychological well-being of sick and disabled people who might already be experiencing depression and anxiety. This will also put pressure on mental health services funded by local authorities. What assessment have Ministers made of the impact that time-limiting will have on health and social care budgets and services, and what discussions have they had with the Department of Health?
Calls for a rethink on the time limit have not been limited to people with cancer and certain disabilities. Concerns about the impact of the proposal is widespread. I noticed that at the Liberal Democrat conference in September delegates voted unanimously to make it Lib Dem party policy to oppose an arbitrary time limit on ESA. I wonder what discussions the Minister has had with his Lib Dem colleagues about alternatives to the 12-month time limit following the Liberal Democrat vote at the party conference, about which no doubt Liberal Democrat noble Lords will correct me if I am wrong.
It is to be welcomed that the Government have recognised the need to make changes to the work capability assessment, and I commend them for at least recognising that. However, I look forward to the Government’s proposal to make more widely available the automatic entitlement to support groups which is currently available to groups such as patients receiving intravenous chemotherapy. As I said, I commend them for that. However, the necessary changes will take time to be implemented, and that will not improve the situation for cancer patients who have finished their treatment and need sufficient time to recover before they are well enough to return to work.
It is widely recognised that the WCA needs to be significantly improved before it is fit for purpose. The introduction of a 12-month time limit for ESA will compound the existing problems relating to the WCA. Instead of taking away support from sick and disabled people who are still unable to work, the Government should be working with disability organisations to design back-to-work programmes that offer personalised support appropriate to customers’ needs. I sincerely hope that the Minister will be sympathetic to the cause and that we will have some proposals from the Government that are encouraging to them.
Baroness Lister of Burtersett
My Lords, I am pleased to rise in support of the vital amendments tabled by the noble Lord, Lord Patel, and in opposition to the Question that Clause 51 stand part of the Bill. I am afraid that this will be another of my rather long speeches but this is such an important issue that it is essential that we spend time on it.
The noble Lord, Lord Patel, speaks from his considerable experience as a clinician, particularly with regard to cancer patients. The cause of cancer patients has also been well served by Macmillan Cancer Support, which has done so much to bring this issue to public attention and to brief noble Lords. I shall not focus on this particular group because I cannot possibly bring to the matter the same level of expertise as that of the noble Lord. Instead, I shall discuss some of the wider implications for our social security system, including the gender implications of relying on income-related ESA as an alternative to contributory ESA.
In the other place, the Minister of State told the Public Bill Committee:
“It is a long-standing principle of our contributory system and the JSA system that we allow those who have paid in to draw back out money for a period of time, but that there is a limit to the amount that they can draw out again”.
He continued:
“There has been an enormous inconsistency between JSA and ESA and its predecessors, in that somebody who manages to get themselves on to our sickness benefits is there indefinitely, whereas somebody who is on JSA is there only temporarily. That creates a perverse incentive in the system”.—[Official Report, Commons, Welfare Reform Bill Committee, 3/5/11; col. 650.]
Baroness Lister of Burtersett
I was just quoting from a letter I received from a 50 year-old woman with complex mental health problems. She wrote that,
“my life revolves around trying to be as well as possible. I cannot stress enough how frightening it is to feel that you are not able to work, will not be put into the support group”,
she fears,
“and will be left to use up everything you have until eligible for means-tested benefits … My medicine prescription has been increased 4-fold and been supplemented with extra medication since the time limit was announced”.
As someone who has campaigned and argued for a more inclusive social security system for 40 years, I feel that I have to use the luxury of being a Back-Bencher to oppose this clause on principle. My noble friends on the Front Bench know and understand my position. However, if time-limiting goes ahead, it must be done on the fairest possible basis. Therefore, I hope that the Minister will look favourably on the proposed amendments in the name of the noble Lord, Lord Patel, which would aim to achieve that in three main ways.
First, I hope that action will be taken so as not to penalise people with fluctuating conditions who go on to the support group after the contributory ESA has expired. I know that that is a particular concern of Macmillan Cancer Support. Secondly, I could not believe at first that the rule would be applied retrospectively. The case against that has been made extremely eloquently by the noble Baroness, Lady Thomas of Winchester. As a result of this, the letter has gone out to existing recipients. According to one who wrote to me, far from providing the reassurance mentioned by the Minister in his opening remarks at Second Reading, that will, she warns, “strike fear” into the hearts of those affected. Could the Minister state whether there is a precedent for such a letter to go out before Parliament has agreed such a controversial change?
Thirdly, I was also dismayed when I realised that the 13-week assessment phase is included in the one-year time limit, which in effect means that full contributory ESA will last for a year minus 13 weeks. In Committee in the other place, the Minister of State agreed to look again at this issue in response to concerns expressed by a Liberal Democrat MP. What was the outcome of this further look? According to a Written Answer that I received, if the assessment phase were excluded it would reduce the savings by £100 million in 2012-13, rising to £120 million by 2014-15, but falling to only £40 million by 2016-17. Here is the nub: this clause is not about making social security fairer; it is about saving money, as my noble friend Lord McKenzie has already stated.
I have some sympathy with the Minister. He is extolling the virtues of universal credit at every opportunity, yet universal credit is in danger of being contaminated by sharing a Bill with unfair, cost-cutting measures such as this one. I hope, therefore, at the very least, that the Minister will think very hard about how to mitigate this unfairness through the kind of amendments before us.
Baroness Meacher
I rise to speak to Amendments 71M, 71N, 71P, 72A and 73. First, I thank the noble Lord, Lord German, for kindly allowing me to speak a little earlier than I had planned because I have to leave the Committee briefly at 5 pm. I apologise to the Minister and the Bill team that I have not been able to attend the briefing sessions. They are a wonderful idea and I had hoped and assumed that I would attend every one, but life has not been quite like that.
I also apologise for not having had quite the time I would have wished to prepare for this debate. Having said that, I have major concerns about the plan to limit entitlement to contributory ESA to one year. I understand from the CAB service that the DWP has estimated that, of those on contributory ESA and in the work-related activity group, 94 per cent will remain on the benefit from more than a year, so it is estimated that by 2015-16 700,000 people will be affected by limiting contributory ESA. Some will lose their entire benefit payment, currently worth £94.25 a week. I know that the Minister will correct me if that is wrong. It sounds astonishing. The rationale for this change is, I suppose, twofold. First, it is to give maximum incentive to people to return to work and, secondly, it is to save taxpayers’ money. I will refer to those two points briefly.
It is particularly difficult to support the employment incentive argument at present, when even able-bodied people and remarkably highly skilled people are finding it very difficult to find work. As we said, we think that about 94 per cent of those with disabilities will remain on this benefit beyond their contributory entitlement. I would welcome the Minister’s views on the fairness of this provision in relation to an individual with—obviously in terms of my own concerns—ongoing and fluctuating symptoms. He is very keen to work and does not need any incentive, but no doubt he will be given lots of incentives through the mechanics of the work-related activity group. But the fact is that he cannot persuade an employer to take him on. I know that the Minister is aware that there are very large numbers of people on ESA who want to work and cannot persuade an employer to take them. In other words, these people are very much the deserving unemployed. They used to be called the deserving poor. I happen to know hundreds of people personally who fall into that category. I would be grateful for the Minister's views on that.
If we consider for a moment the need to protect taxpayers’ money, I happen to believe that taxpayers would recognise that this group—people who are disabled and sick on benefits—should be entitled to their benefit, having contributed, many of them, for decades. Politically, I do not believe that this is something that one can possibly justify. It is very hard to argue that savings to taxpayers’ money should be made with this particular group—sick and disabled people—rather than at the expense of other groups in society with much broader shoulders. There are all sorts of cuts that a Government could make that would seem much fairer than this one.
Amendment 71M, tabled by the noble Lord, Lord McKenzie, would at least be a great deal fairer. In a sense you could say that it is all rather arbitrary— 365 days or some other number of days. Really, it is just not justified to cut contributory benefit at any stage for many of these people, but I suppose that that would be better than the alternative.
Lord German
My Lords, I shall speak to Amendment 75A in my name. I start by saying that the important thing is to get the work capability assessment right. That was a point made by the noble Lord, Lord McKenzie. It is important that people are accurately placed in one or another of the categories. That means that rapid progress needs to be made with the improvements that have been suggested by and are being adopted from Professor Harrington’s report. It seems that the work capability assessment is a crucial first part in ensuring that the whole system works effectively and properly.
The purpose of this amendment is to protect the most vulnerable and the poorest, and to take a slightly different approach from those suggested so far. I should like to start by looking at the context of two words that many noble Lords have used so far in this discussion—“arbitrary” and “temporary”. There is a difference. The noble Baroness, Lady Meacher, referred to any date being arbitrary. It is indeed an arbitrary decision, and if you have some form of illness that will take you beyond 720 days or whatever, then it is an arbitrary cut-off date one way or the other. That is our principal concern—the provision does not address the issues relating to the people concerned.
I of course recognise that there is an issue to which many noble Lords have referred regarding the cost-saving measure in this proposal. I should like to ask the Minister why the savings now being predicted are between £1.3 billion and £1.4 billion, given that in the comprehensive spending review the Chancellor of the Exchequer said that the savings would be £2 billion a year. This is a question that my noble friend Lady Thomas raised—to try to identify why there was a change of procedure from the announcement made by the Chancellor of the Exchequer, who stated that that there would be no backdating and that the provision would not be retrospective, when this proposal is for some form of retrospection.
When you examine the ways in which you can have a non-arbitrary system that deals with people’s needs, and when you look for a system that in our view deals with the most vulnerable and poorest in our society, there is a variety of ways in which you can do it. Obviously, through medical assessment, you could potentially re-examine people at some stage and say whether their medical condition had improved or was changing, or whether the condition would require that the payment should continue. The problem with reassessment is: when do you reassess and how long does that take? If you understand the meaning that I have already put on the word “arbitrary”, then, whether it is 18, 13, 12, nine or six months, you will see that it really is a question of the individual’s circumstances.
Lord McKenzie of Luton
I am sorry to interrupt the noble Lord, but if the process is that when someone is put into the work-related activity group there is a prognosis as to how long they are likely to remain there—this is the basis on which referrals to the work programme are made, for example—does he accept that that is a natural and clear point for reassessment?
Lord German
It is a point of assessment, but the problem is that people’s medical conditions can alter—they can get worse or better, and there is the issue of fluctuating conditions that noble Lords have also recognised. The point that I am making is that there is a problem with a single point, and you need to have a progression of points if you are going to use medical assessment.
The other approach that has already been referred to in this debate is exemption by groups. Once again, identifying groups of people is very tricky because people can fall into different categories within a particular group. There is also the danger that, if you identify one group, another group might be left out. In this amendment, we are therefore proposing to look at ways in which—while we cannot wreck the Government’s proposals to make savings and reach the overall budget targets that they have set—we can ensure that the most vulnerable are protected from the effects of any time-limiting contributory ESA. This essentially means protecting the poorest and the sickest. The objective, therefore, is to focus the protection of those who are least able to support themselves. I know that that aim is shared by the Government, and we recognise that they are not time-limiting those in the support group, or even those on income-related ESA—to which I shall return in a moment.
However, we are not fully convinced of the thresholds at which income-related ESA apply, or that they are set at a level that will adequately protect low-income claimants—especially those with working partners. It is interesting to note from the impact assessment that 62 per cent of all those who would not be able to claim income-related ESA at the end of 12 months could not do so because of their employment. I want to come back to that issue of income. I know that we are talking here about a form of means-testing but, even so, we are talking about the main reason why people’s payments cannot continue.
We know that the Government are keen to ensure that there are no disincentives to work and that work will always pay. I am also aware that the Conservative Party in the Government wants to strongly support family ties through the tax and benefits regime. As such, it seems odd to us that the narrowness of the ESA means test risks undermining both these objectives, since it can present an incentive for a certain group to give up work. Paragraph 24 of the impact assessment states:
“Those with the most incentive to give up work are partners earning less than £150 a week, as their net income could potentially only be a few pounds less if they gave up work. An indicative analysis shows that 10% of all partners are in this position”.
If that is the case, these are the 10 per cent who are obviously the poorest and the most threatened by the change which is before them. With that 10 per cent of people in mind, this amendment seeks to set in law a floor beneath which the means test cannot apply. We are probing the Government to see whether they think that the test, as currently applied, is adequate to protect the lowest income households.
The amendment is set in terms not of the hours worked, because that is quite difficult to assess, but of the actual paid income. We know that the new universal credit system will enable the DWP to indentify the income of the partner. I am attracted to an income-based level because it is a clearer marker of actual income than hours worked.
Nevertheless, we would like to hear the Minister’s view on alternative methods of measuring income for a means test. We have chosen in this amendment the income tax personal allowance threshold divided by 52, for simply making it a weekly income measure rather than an annual. This is an external marker and thus less arbitrary than plucking a figure from thin air to write into legislation. If you divide the current rate of £7,475, the figure comes to £143.75 a week, which is very close to the £150 figure mentioned in paragraph 24 on page 11 of the Government’s impact assessment. This level therefore almost equates to the £150 figure. The Government’s own assessment notes that this is the level below which there exists a disincentive for people to work. We are trying to address that disincentive.
We—those who tabled this amendment—cannot be committed to a particular bar or level to set. But I am keen—I hope noble Lords will agree—to set in place an architecture for the future. My noble friend the Minister has used many times the argument that the taper can move with time as circumstances permit, but I want a means-test bar from which one can fluctuate as government income increases. We are aware that the Government have expressed the intention to raise the personal allowance threshold and we are very pleased with that. But it seems to us that if the Government think one should keep one’s earnings and not lose them to the taxman below a certain level, the same logic might also be applied to earnings and to one’s partner’s ESA. I welcome the Government’s response to the future impact of this amendment in light of the changes to the tax threshold which are before us in the next few years.
There are two other issues on which I should like to probe the Government. If they were to look at what happens immediately after the 12-month period is up, and if the income-related ESA is not available—because of the bar or the fact it is means-tested, or for any other reason, capital perhaps—will the Minister allow people who would otherwise have been eligible for income-related ESA to have the national insurance contributions credits applied to them? That would allow them to get the passported benefits that came with that purpose and therefore additional benefits would flow. At its minimum level, that would be a level of support that people could look to.
Baroness Morgan of Drefelin
Before the noble Lord sits down, he said that there was a sense that the work capacity assessment needs to be right and that he was thinking about arbitrary cut-offs and temporary classifications. Is he saying that, in order to get this right, we have to look again at the support group? Because of the functional impairment or prognosis of the people whom I am concerned about—those who are known to be facing a terminal prognosis of two years—perhaps they should automatically be in the support group. If that were the case, there would not be a problem
Lord German
I can answer that question by simply stating that the work capability assessment, if done accurately enough, should place people in the most appropriate group. Of course, one of the questions in the work capability assessment is, “What are you capable of?”; “capability” is in the title. If you are capable, with an illness, to do some work, and if you know that that will diminish over time, logic tells me that you need to think again about the way that that group of people is affected by such a proposal.
In a sense, what it means is that a clear definition between support on one side and being work ready on the other is not necessarily the only appropriate distinction you can make. It is part of the issue about having clear cut-offs and clear decisions of this sort. You need to be flexible for the people who need it most and whose circumstances will have changed.
Baroness Hollis of Heigham
I shall be brief because we have had some very full and powerful speeches from people who are intimately involved and who have specialist knowledge in this field. Like others, as I am sure my noble friends will go on to say, I would prefer not to see this clause in the Bill at all. I very much support the whole range of amendments that have been tabled.
However, I want to add my particular support to Amendment 75A. This is something that many of us referred to at Second Reading. It is the amendment that, leaving aside the issue of the disabled person, most protects the position of the other partner in the relationship, and it is therefore consistent with universal credit. In my view, it is the amendment that, if the Minister seeks to retain consistency with universal credit, he will do his best to support. Basically, we are again running the sort of arguments that we were having over second incomes and disregards, where the question was, “What is the return to work?”, and the Minister told us that he could not afford to run a disregard, even though the costs of childcare might eat up the earnings.
Here, we have the same problem in an even more aggravated form because here, above all, we need if we possibly can to keep the working partner attached to the labour market. We know that if somebody needs to care for more than about 20 hours a week, they probably cannot combine that with anything other than a part-time job. The ingenuity of the Lib Dem amendment is that it allows for something like 24 hours a week at minimum wage or thereabouts, which is pretty much at the tipping point where somebody leaves a full-time labour market and can manage only part-time work in order to make a generous and graceful contribution to caring responsibilities.
If the Minister cannot accept the push of this amendment—I will not say “understand” because I know that he understands it perfectly well—he will be saying to a woman in this position, who may be the working partner: “We are going to make it so unattractive for you to stay in the labour market and work that you, who may very well be tired because of your caring responsibilities, may have financial pressures and may yourself have minor complaints, will want to come out”. It would be infinitely better for her poverty, her health, her connections to the labour market, her sense of self-esteem and her social gregariousness to have a wider life that we should do our absolute damnedest to support her in the labour market—even if on only a part-time basis—and ensure that she kept that money. That is not a huge sum but it would lift her, as a parent, out of poverty and keep her in the labour market. If her partner’s condition deteriorated, we might be very glad that she had that earnings capacity behind her. If he died, we should be very glad that she had remained attached to the labour market and could, after a period of grieving, re-enter it. If he got well, and we would expect to attach conditionality to her, we would be very glad that she had remained attached to the labour market. On all possible outcomes of their partnership, it is in our public interest—the Government’s included—that we keep her attached to the labour market.
I feel very strongly that we have real problems with couples’ earnings. We have seen that before in amendments moved by my noble friend Lady Lister. Here, it seems even more damaging if we go down the parsimonious route of trying to peel off every pound that the woman earns against the partner’s benefit income. I hope very much not only that the Minister will take this away and think about it but, if he is unable to move, that the Lib Dems, who have come up with a decent and ingenious amendment addressing a very real problem—though it is not sufficient to deal with all the problems that disabled people face on the ESA, which need other amendments—will not retreat from the courage of their convictions and will pursue this through.
Baroness Gibson of Market Rasen
My Lords, perhaps I may explain why I am briefly entering the Bill at this stage. I did not speak at Second Reading and was not planning to speak in the debates but I have chosen to speak today because I received a letter from an old school friend. He went to school with me when I attended Caistor Grammar School in Lincolnshire many years ago. This friend knows a lot about disability because he is himself disabled. In mid-life, he went into hospital to have what was expected to be a very straightforward operation but unfortunately came out having lost his sight. When Derek wrote to me, I took his letter very seriously and I wish to speak briefly on his behalf today.
My friend is very worried indeed about Clause 51, particularly about the one-year time-limit on contributory ESA, which we have heard a lot about this afternoon, and the replacement of the working-age disability living allowance. With regard to the limit on contributory ESA, he points out that it takes no account of the often very complex issues that disabled people need to address in preparing for and finding work. I understand that the Government have estimated that 94 per cent of those on ESA and in the work-related activity group would take over a year to find work. That would mean that by 2015-16 700,000 people would be affected and 280,000 could have lost their entire benefit payment. The new criteria focus on a much narrower range of support than DLA and appear to fail to recognise the barriers that prevent blind and partially sighted people being able to participate fully in society.
The Disability Benefits Consortium, which is a national coalition of more than 50 disability and welfare charities and other organisations committed to working towards a fair benefits system, also wishes to see Clause 51 removed from the Bill to ensure that disabled people continue to receive the critical financial support that they so deserve. The Disability Benefits Consortium included in its briefing a moving statement from a woman who has Parkinson’s disease. She says:
“I’ve worked all my life and paid for decades into the system on the understanding that there’ll be support if I need it. To be told that all of this support could have an arbitrary time limit is both unfair and stressful”.
I agree. Clause 51 is very flawed and this would be a better Bill if it were removed.
Baroness Hayter of Kentish Town
My Lords, I am not replying on behalf of the Front Bench at this stage. My noble friend Lord McKenzie will no doubt do that after the Minister has spoken to his amendment. I am particularly pleased to rise after my noble friend Lady Gibson and want to comment on what the Lord, Lord German, said, although he is unfortunately not in his place at the moment. No doubt he can read my comments at a future moment.
Like my noble friend Lady Hollis, I very much support the amendment to which the noble Lord, Lord German, spoke. However, I should think he finds it rather easier to speak to it here today, in the Committee, than at the Lib Dem conference. I do not think it would answer the party’s desire to get rid of arbitrary time limits. It will, to some extent, help the very poorest but it does not address the fundamental issue that has been raised.
As my noble friend Lord McKenzie said in opening the debate, this will affect some 700,000 people. I should like to talk about just a few of these, particularly older women with breast cancer who have paid into the insurance system for their whole working lives. I quote in particular Dawn Sheldon, who wrote to me. She said:
“I am terminally ill with breast cancer which has spread to the lung. I am in receipt of benefits, without which, I would have no income whatsoever. Under the proposed reforms, I would have to find employment. My concerns are that although reasonably qualified, I’d be applying for jobs against other applicants with a clean bill of health and a long life expectancy who would be more attractive than my own CV”.
As has already been mentioned, in addition to being ill with the cancer itself, breast cancer sufferers take very strong medication, sometimes for up to five years, with very unpleasant side-effects. Dawn says that without benefits she probably would not be able to pay her mortgage and fears that she would become homeless.
Other breast cancer sufferers have also written to me. Similarly, having been on strong medication for 18 months, one woman feels that she would be a cripple if she carried on using it. Therefore, she asks what benefits she should have, and she might come off the medication. That is some indication of how dreadful some of the side-effects are for some people. Another woman writes that she has a lot of pain in her joints at night. She has an eight year-old, so she is taking whatever she can to be here for him. The consultant said that it is a balance—quality of live versus length of life. She says that when she takes her painkillers her boss can tell that she is not able to work as well as she does normally. However, she wants to be there to see her son grow up.
These women have asked me to plead with the Government not to reduce their benefits. They are pleased that their tumours have been removed but they are not fit and well; they are struggling to keep going. While they have not yet been diagnosed as being terminally ill, it would be wrong to think that they are able to return to work. They have a choice to make about whether to take drugs to live longer and see their children grow up but, with that medication, perhaps be even less fit for work. The question that they pose is: if you were a prospective employer, would you want to employ someone with a history of cancer or someone who had to take medication to the point that they could be ineffective in their work—at least, at certain times? These women feel that the new medical assessment is a “ploy”—their word—so that they can simply be told what the Government want to hear: that they are fit for work, disregarding the reports of qualified medical staff.
Lord Freud
My Lords, I must start off by saying that the contributions of noble Lords today are highly informed and very moving. But let me try and respond as much as I possibly can to those many points.
Employment and support allowance for those in the work-related activity group was never intended to be a long-term benefit, but an interim measure for those who are expected to return to work. I know that there have been concerns that restricting contributory ESA to a year may disadvantage people with longer-term health conditions or disabilities. However, we remain of the view that this is the right approach. The benefits system has to be fair to all those who contribute to it as well as those who draw support from it. We expect people on benefit to take up the help and support available, through Jobcentre Plus or the work programme, to move off benefit and into work.
Dependent on individual circumstances, other benefits, such as housing benefit and disability living allowance, may be available to those claimants affected by the introduction of a time limit to the income-related employment and support allowance. It ought to be available to those on lower incomes.
Introducing a limit on the length of time people in the work-related activity group are entitled to contribution-based employment and support allowance is more consistent with the rules for contribution-based jobseeker’s allowance, which has a time limit of six months, while recognising the different nature of employment and support allowance recipients and the purpose of the benefit. People receiving income-related ESA will not have their benefit time limited, nor will people with the most severe conditions or disabilities in the support group.
What is more, we expect 60 per cent of the people who leave contributory ESA as a result of the time limit to be fully or partially compensated by income-related ESA.
In response to the noble Lord, Lord McKenzie, that 60 per cent can be decomposed into two sets of 30 per cent. 30 per cent of those affected are expected to claim both income-related and contributory ESA. So when the time limit applies, they will continue to receive income-related ESA. The majority will therefore see no change to the total amount of ESA received. The other 30 per cent are expected to become eligible for income-related ESA, some of them at the same rate. They will become eligible for passported benefits, such as the full housing benefit and council tax benefit and free prescriptions.
Lord Freud
My Lords, I had just begun to address the question raised by the noble Lord, Lord McKenzie, on national insurance contributions. The person who has transferred to contributory benefit from incapacity benefit will be treated as having met the contribution conditions from the point of migration. Claimants will be entitled for a year to ESA if they are placed in the work-related activity group. National insurance credits will continue to be awarded to people who continue to have limited capacity for work, even if they receive no ESA at all.
Through these changes we are sending out a clear message. To the most vulnerable, we will provide the support when it is needed for as long as it is needed.
Lord McKenzie of Luton
If the Minister has moved on from national insurance, perhaps he might just address this point of circumstances where somebody starts off in the WRAG and at the start of their claim meets the national insurance contributions, because they have been both credited in and paid sufficient in one of those years. That claim is terminated or ceases after 365 days and the person then moves into the support group. Would that be a new claim for the purposes of attachment to the national insurance contributions? If people had to look afresh at that point, they may well have been credited insufficiently, but they would not be able to pay in, because they would not have been in the labour market and would not have had earnings. They would therefore be disconnected from contributory ESA.
Baroness Lister of Burtersett
I shall ask the Minister another question, so that he can get his breath back. I very much welcome what he said about credits. This may reflect my ignorance of the mechanics of it, but could he explain how people get credited, if they cease to be part of the system and have no entitlement to anything?
Lord Freud
My Lords, clearly, the detailed mechanics of that is something that we will need to work out and set out in regulation. I am not absolutely convinced that we have it locked down—we might, but I simply do not know. But clearly we will make that clear.
I shall come on to the question asked by the noble Lord, Lord McKenzie. The run-ons in practice are rather complicated. I shall come on and deal with that in a little while.
For the most vulnerable, we will provide the support when it is needed for as long as needed. When people can work, they should be expected to; a lifetime on benefits is no longer an option.
Amendments 72 and 76 are technical amendments that seek to restore the original policy intent for Clauses 51 and 52. The current wording of those clauses meant that days in the assessment phase before the determination that the claimant should be placed in the support group must count towards the calculation of the 365-day limit. This would not of course affect a claimant who remains in the support group throughout their ESA award, but it would affect those claimants who moved to the work-related activity group from the support group, at which point they would be entitled only to the balance of the 365 days after deducting the day spent in the assessment phase. This was never our intention and I urge noble Lords to accept this amendment.
I shall now address Amendments 71M, 72A, 73, 74, 75 and 75A. Amendment 71M would increase the time limit for claimants receiving contributory ESA in the work-related activity group from 365 days to a prescribed minimum of 730 days. We disagree that two years is the right approach. The noble Lord, Lord McKenzie suggested that this was a modest change. It would, in fact, cost a total of £1.6 billion by 2016-17.
Baroness Hollis of Heigham
It would be more helpful and reasonable if we had annual figures, not roll-up figures.
Lord Freud
I will be supplying annual figures later on. I wanted a single figure.
Baroness Hayter of Kentish Town
I think that the noble Lord wanted a big figure.
Lord Freud
It is a single figure. We believe that our one-year time limit is not arbitrary; rather, it strikes the right balance between restricting access to contributory benefits and allowing those with longer-term illnesses to adjust to their health condition and surrounding circumstances. In recognition of that, it is double the length of time allowed for contributory JSA and is one of a number of difficult decisions that the Government have had to make in view of the current fiscal climate.
Given that I was asked about the single figure, perhaps I may take the opportunity to read out the per annum figures. Next year, the change would cost £270 million; in the following year, 2013-14, it would be £420 million; the figure would be the same the following year; in 2015-16, we think that the cost would be £360 million; and it would be £140 million in 2016-17.
Baroness Hollis of Heigham
Do those interesting figures mean that by 2020 the figure could be expected to be below, say, £50 million?
Lord Freud
My Lords, I am not sure what the extrapolation would be. Those are the figures we have. If I have a longer run at it, I will make the figures available when, or if, I have them. I am sorry, but we do not have any figures stretching out beyond that point.
Baroness Hollis of Heigham
The Minister accepts that point that it looks as though there is a reverse bell curve here. It would be interesting to know, perhaps at Report, some information as to how that would pan out.
Lord Freud
My Lords, one can clearly see the process here, as you move through the bulge, of stopping as you take on the transfer from IB to ESA. You can see that the effect of moving from one year to two years is a reduction as you go through that group—the bell curve, as the noble Baroness described it.
Baroness Morgan of Drefelin
I wish to be sure that I understand what the Minister has just said. He said that there are two reasons for choosing the 12-month period and that it is therefore not arbitrary. Therefore, the choice was made, first, due to the need to make financial savings and, secondly, because 12 months was sufficient time for people to adjust to their illness and make arrangements. Did I get that right?
Lord Freud
My Lords, no. I am making a different argument here. It is an argument about cost. However, I will come back to the “arbitrary” issue from the perspective of what happens elsewhere. Other countries do not have benefits which precisely mirror the design of the ESA, but a number of countries already impose time limits on eligibility for both sickness benefit, which covers temporary incapacity for work, and invalidity benefit covering long-term or permanent incapacity. For example, Austria, Belgium, France, Denmark, Ireland, Spain and Sweden all impose 52-week time limits on their citizens.
Baroness Hollis of Heigham
I think that the noble Lord will also note from comparative research that their replacement earnings benefit, whether you call it JSA, IS or whatever, is a much higher proportion of earnings than is the case in the UK.
Lord Freud
My Lords, as noble Lords know, direct comparisons of systems are terribly difficult to make.
Lord Freud
Although we have what seems to be a rather modest level of primary benefit, whether it is JSA or ESA, we pile up a lot of other “elements”, we might call them, in terms of housing benefit to get substantial figures. Therefore, making a comparison internationally is not straightforward at all. I am not making a straightforward comparison of amounts; I am making a straightforward comparison of the timing issue. I am saying that the 52-week limit falls into line with much international practice in countries whose systems we generally admire. I am arguing that, to that extent, the accusation that this is arbitrary simply does not stand. We are conforming with norms which are followed very broadly internationally.
Baroness Hollis of Heigham
That may well be right and I would not disagree with the noble Lord’s point about time and the comparison that he made there. However, the point is that that time limit, although it may or may not be regarded as arbitrary, is not threatening if the drop-down from that limit to the alternative income, which is income-related, is not particularly significant. That is the point that some of us were seeking to make.
Lord Freud
My Lords, in practice, other countries in northern Europe, as noble Lords will know, have a very much more contribution-based system, and the support for people who fall outside that system or are immigrants who never got into it is much lower than with our support systems, which are pretty good for people who are not in the economic system. Therefore, I am not sure that I accept that point at all.
Baroness Hollis of Heigham
I am sorry to intervene again but this is Committee stage. The point there is precisely the aim behind this set of amendments. Most of the European countries that I have studied—and I have looked at the Bradshaw research and so on—have a much higher commitment to the contributory principle. Therefore, this covers people for much longer at a much higher level with a sense of entitlement. This issue goes back to the very powerful arguments put forward by my noble friend Lady Lister. With a strong commitment to a contributory principle, even if you have a relatively short time limit for sickness benefit, because of the resulting contributory benefits to remaining unemployed, the drop-downs are therefore not threatening. That is surely the point that some of us have been seeking to make.
Lord Freud
My Lords, I think that we could debate this issue for a long time. The point that I am simply trying to make is that the arbitrary nature which this time limit has been accused of looks much less arbitrary when it seems to be the time norm chosen by a whole range of countries. Other countries such as Canada, Germany, Poland and Australia also feel that it is right that there should be some limit to the state’s support for those who have an illness.
Lord McAvoy
I am grateful to the noble Lord, who has given way a lot, as we all recognise. However, I am sure he recognises that this is a very complicated and emotive subject. I do not have the mastery of detail that the Minister or my Front Bench team have. How can a 12-month period be applicable to someone who is suffering from cancer? It is an arbitrary decision.
Lord Freud
My Lords, I shall come to the point about cancer, which is clearly very important. The powerful speech of the noble Lord, Lord Patel, on his amendment had to do with that. I shall deal with it as a whole. I am trying to make one point at a time. The point I am making is that our proposals are not out of kilter with the arrangements in many other countries. We still provide unconditional support to those in the support group and income-related benefits for the poorest.
I shall just pick up the point of the noble Baroness, Lady Lister, on the expectations of contributors to national insurance. National insurance contributions are used to pay for a wide range of contingencies. These include working-age benefits, the state pension and the NHS. The overwhelming proportion of expenditure—some £60 billion a year—goes on the state pension. This is in contrast to around £6 billion on ESA and incapacity benefit and around £1 billion on jobseeker’s allowance. There have been numerous changes to national insurance and the benefits system over the years to take account of changes in society and demographic factors. For example, far more women now pay national insurance than when contributory benefits were first created. As I have said, we believe that the adjustments we are making are fair and reasonable.
Baroness Lister of Burtersett
Will the Minister acknowledge the point that has been made by several noble Lords? Some people will not see the pension that they have paid their contributions towards. Therefore, they feel particularly aggrieved that, having paid contributions all their life, the contributory ESA is being snatched away from them just like that.
Lord Freud
My Lords, let me come back to that. It is to do with the debate about who should be in the unlimited support category for an unlimited time and who should not be in it. As I just said, we support the poorest on an income basis and those who are the most ill in the support group indefinitely.
Amendment 71N introduces another regulation-making power to the Bill. It would enable the Government, or a future Government, to exempt certain groups from the 365-day limit for those in the WRAG. This point was also raised by the noble Baroness, Lady Meacher. We believe that it is for the WCA to distinguish between those who are in the WRAG and those who should be placed in the support group and therefore be exempted from the time limit. As noble Lords will know, Professor Harrington has been working with Macmillan and other stakeholders to help us make sure that people are placed in the appropriate groups. Therefore, an amendment along the lines proposed by the noble Baroness is not necessary.
Amendment 71P introduces a new provision, which would mean that people whose contributory ESA exhausts after 365 days would be able to requalify for the support group if their condition deteriorates. However, this could mean benefits being reinstated 10 or more years after the claimant last worked, which is not reasonable. Moreover, we already have a series of safeguards in place that would protect people in this position. First, if the claimant leaves ESA before their contributory ESA exhausts, we have the linking rule, which enables the claimant to return to that contributory ESA within 12 weeks of leaving it.
Secondly, we already have within the ESA regulations an easement allowing a claimant to satisfy the first contribution condition for ESA if they have paid contributions in any tax year at a certain rate, and they had received a contributory ESA award in the last complete tax year before the current benefit year when they are claiming again. If it is decided that a person has limited capability for work-related activity, they will, of course, be placed in the support group. In addition, if someone qualifies for income-related ESA—as some 60 per cent of claimants will—eligibility for ESA can be reinstated automatically.
On the point raised by the noble Baroness, Lady Morgan, regarding protection for those who qualify under exceptional circumstances, time-limiting will apply in the same way as in all other cases. Those in the work-related activity group will be time-limited; those in the support group will be unaffected. Consideration of exceptional circumstances applies to those who do not have limited capability for work.
For those for whom work is simply not an option, we would expect them to be in the support group and not affected by time-limiting.
Baroness Morgan of Drefelin
Perhaps I may reassure the noble Lord that there are many people who would not be in the support groups specifically because of the way that a support group is designed. Some people with deteriorating conditions—perhaps motor neurone disease—can look forward to a time when they know that they will become increasingly ill, but on that day they are not in the support group. It is a difficult issue.
Lord Freud
I hear the point being made by the noble Baroness. What we are looking at in the WCA, in particular with regard to cancer patients, is to work our way through that position. We are expecting a report from Professor Harrington before Report stage. This is a very important point, also made by my noble friend Lord German, about how getting the right people into the support group, using the WCA mechanism, is such a key part of this system. I think that virtually everyone in this Committee Room would say that if the WCA test worked absolutely perfectly we would not have a problem. There are some concerns about getting that test absolutely right, and I hear those concerns; but that is the way to address these issues, and that is what we are planning to do.
Baroness Morgan of Drefelin
Perhaps I may make a small point before we move off this issue completely. I am also concerned about the definition of terminal. There is a question here. I cannot remember the correct terminology, and if the noble Baroness, Lady Finlay, were here she would tell me instantly, but during the six-month deadline or prognosis period, things may perhaps be moving on. Perhaps for some people we need to think about that period being longer than six months.
Baroness Wilkins
Does the Minister also accept that any recommendations made by Professor Harrington will take some time to put into effect—until 2014 at least? In this amendment, we are talking about this measure coming into effect next April.
Lord Freud
My Lords, that is a little premature. It is literally too early to look at the timetable of introducing any recommendations, whatever they may be? However, there may be elements that can be brought in sooner rather than later. I do not think that there is an impossible timeline here.
There is a real issue about these particular people who are suffering from cancers and other similar illnesses. You might look at the kind of experience that they will have in practice, because it is easy to look at the one-year ESA in isolation.
In practice, many people will first go through six months of sickness pay, whether it is occupational or statutory sick pay. That is a 28-week period in which many people will undergo much of their treatment. Then there is a one-year period if one is on the WRAG. Many people will go for a period on the support when they are going through treatment. We are seeking to precisely define which types of treatment they can go through. So there is a period on support and then a period on the WRAG. So the idea that there is an arbitrary one year, spinning down the track, from people being ill, is not the reality. There are a lot of stages to go through in our system, which people go through at different times and in different ways. I do not think it is right to think of it in a rather simple way; our system is more complicated.
Lord Patel
Sorry to disturb the Minister’s train of thought. I am grateful for the comments he made earlier, and the sympathetic way in which he made them. He may look forward to Professor Harrington’s report. I hope the interpretation of that report will be the important aspect. I gave the example of patients who are on intravenous chemotherapy, who are regarded as different. Equally, for people who are on oral chemotherapy or radiation treatment, it is a very debilitating form of treatment that exhausts one’s body completely. If you ask any patients who are undergoing this treatment, they will tell you that it does.
The second comment that the Minister just made concerns the different amount of money that is available to different people. But it still applies within the 12-month period, unless I have misunderstood.
Lord Freud
No, let me make that clear. I will take the points one by one.
Professor Harrington is looking very closely at cancer treatments and is working very closely with Macmillan in particular, to which I must pay testimony; it has provided a lot of extraordinarily valuable background data that we have been grateful for and are using. So there is a process going on.
The point I was making about the timescales is that clearly there is a time when not absolutely all but the bulk of all cancer sufferers going through treatment will be on the support, which is unlimited. They will have gone through that process, then they start the WRAG process, which is time-limited, after that. So it is not “one year for your illness”, if you like; it is one year on these particular benefits.
The noble Lord made a most effective speech at Second Reading, which I remember vividly. I am sure everyone else does as well. He was making the point about how tough it is getting through the experience of cancer—and we are worrying about that in detail. But I also want to give reassurance on the example the noble Lord used, when you get to a year and you are still having a tough time. That is probably not likely to happen in practice very much because of the different phases.
Baroness Hollis of Heigham
What the Minister is saying, which is a welcome elaboration of policy, is that new entrants into the system who have the sorts of conditions that the noble Lord, Lord Patel, and others described, may very well be reassured by the fact that they have up to two years or longer on non-means-tested benefits. Does that not therefore put into even sharper concern the situation of the retrospective nature for people already on those benefits raised by the noble Baroness, Lady Meacher? Does it not suggest that by comparison the situation is that much the harsher?
Lord Freud
I will come back to that issue and argue strongly that there is no retrospection. I will make that argument in a coherent way. No, the people who will have been on support will be in a position where there will be no difference between the existing group and the new group. There will not be that difference. As the noble Lord, who has infinitely more experience than I have, said, with cancer there is a differential experience, and some people literally sail through the process—the really lucky ones. Maybe that is slightly over the top, but they get through the process in a reasonable time, pretty fast, while others find it very tough indeed. If we put everyone in the same category by definition a type of illness, we get back to the problems that we have with treating people who need help to work and everything else—we are excluding them from that. Of course, once you set a precedent in that area, it rolls on and on. That is why we are going about this using the WCA as the route to putting people in different categories.
I was also asked about support to work. Support to find work will be widely available for all ESA claimants from the outset of their claim, irrespective of their health condition. Following the work capability assessment for most ESA claimants placed in the work-related activity group, that support will be mandatory either through Jobcentre Plus or through the work programme once their prognosis is down to a particular number of months.
The vast majority of ESA claimants who want the more intensive support offered by the work programme will be able to access it as soon as the outcome of the WCA is known. That includes contributory ESA claimants who can remain on the programme after their benefit has come to an end—to meet the point raised by the noble Baroness, Lady Lister. That ensures that they receive all the support they need to help them to return to work. Clearly, that was a conscious decision in the design of the work programme because it is clearly not supported by any sort of delaying switch. This is a straight investment in helping those individuals back into work.
Baroness Lister of Burtersett
I thank the Minister. I am pleased to hear that. So that I am absolutely sure that I have understood, can he confirm that this would also apply to someone who does not qualify for income-related ESA? Is it simply enough that they have received contributory ESA in the past and that that is the ticket to the work programme for the future?
Lord Freud
The noble Baroness has got that absolutely right. It is both for people who are currently on income-related ESA and those who have been recipients of contributory ESA.
There will clearly be a financial cost to Amendment 71P, but I am afraid that in the short time available I have not been able to produce a robust costing.
Lord McKenzie of Luton
I thought the Minister said in his earlier remarks that, effectively, these things did not need the amendment because they were dealt with by way of easement. Therefore, presumably they are already factored into the cost and no additional cost would arise from this. Is that not what he said?
Lord Freud
No, that is not what I am saying. The noble Lord’s amendment raises the example of someone who has been in the WRAG for a year, falls off it and in five years’ time falls ill. The amendment would allow them to go onto the contributory support element of ESA as of right. That carries a cost for which I do not have the exact figure. We are working on it.
Lord McKenzie of Luton
I am sorry but I thought the noble Lord, in responding earlier, said that there were easements to address this so that you effectively reconnected people because of their national insurance contributions. That was the issue that was being raised. We are dealing here with people who, but for the 365-day time-limiting, would currently have a continual claim to ESA.
Lord Freud
My Lords, I am convinced that I did not say that this particular easement was built in. I was talking about national insurance contributions. Once they are through the time-limited period, individuals cannot then switch back into the support group on a contributory basis.
Lord McKenzie of Luton
Forgive me, but that means that people in the support group are disadvantaged by these provisions, contrary to the Government’s assertion.
Lord Freud
My Lords, people in the WRAG who have gone through their time-limited period do not then have a right to go into the support group on a contributory basis. Clearly, they have a right to go into it on an income-related basis, but not on a contributory basis.
Baroness Hollis of Heigham
I am now completely baffled. I thought the argument was that if somebody had not exhausted their time on the contributory basis and had, for whatever reason, been able to get back into work, which then collapsed or folded, they would be able to get back into the support group using some of the contributions that were still available. The noble Lord ran against this the argument that this might be five years away and was therefore unrealistic in terms of connection. The point that I was going to press was that, in that case, the Minister was saying that one of the easements that we currently have is the 12-weeks’ linking rule. I was going to come back and suggest that in these circumstances it would be sensible to have something more like a 12-month linking rule so that there was a realistic time in which, if either the job or the person’s health folded again, they could come back and use up their unused period of contributory benefit.
Lord Freud
My Lords, clearly, they can use up time that they have not used. Therefore, if you are nine months down in the period of the contributory WRAG but go to work and come back, and are due to go into the support group, you can do so. However, if you have used up your contributory element of WRAG, there are, as I was trying to describe, some quite complicated effects. In practice, there may be up to a two-year period to do that. We have an easement, allowing a claimant to satisfy the first contribution condition for ESA if they have paid contributions in any tax year at a certain rate and have received a contributory ESA award in the last complete tax year, before the current benefit year in which they are claiming again.
It is quite a complicated situation. In practice, the easement for many people will work for about two years in those circumstances but no longer. It will not, as Amendment 71P is looking to do, make it unlimited. There may be different costs to having an easement of five or 10 years but we have not had a chance to look at the costs of this amendment. So I cannot accept that we make this amendment and urge that it is not pressed.
I am completely lost in my brief.
Baroness Hollis of Heigham
Perhaps we should have a tea break. The votes were so demanding that we have not had time for one.
Lord Freud
Moving swiftly on—Amendments 72A and 73 exclude from time-limiting any days contributory ESA claimants in the WRAG have received ESA for before this clause comes into effect. We expect that around 100,000 people will have been in receipt of contributory ESA in the WRAG for more than 12 months by April 2012, plus an additional 100,000 who will reach 12 months’ duration in the WRAG during the rest of 2012-13.
On the issue raised by my noble friend Lady Thomas on retrospection, a benefit claimant has no right to receive ESA indefinitely if the conditions of entitlement change or their circumstances change and they no longer meet the conditions of entitlement. Through the amendments made by the Bill, we are changing the conditions of entitlement for the future so that entitlement will not end until Clauses 51 and 52 is commenced. This will not affect any entitlement that has already arisen. I assure noble Lords that we are not seeking to recover past ESA payments that claimants have received correctly, but merely defining their future entitlement to ESA on the basis of whether at the time the clause is commenced they have had ESA already and if so for how long, and whether they are in the WRAG. We took the decision to issue 115,000 notification letters to all claimants potentially affected by this change to ensure that they were given sufficient notice. This generated around 4,200 inquiries from claimants in response.
We wish to strike a balance between fairness of treatment for all those affected and complexity. We do not think that it is reasonable that people in the WRAG who have already received contributory ESA before Clause 51 comes into force should continue to do so for an additional year after the clause is commenced. This would be unfair to new claimants; we want as many people as possible to receive benefit for the same period of time. Given the very difficult financial position that we inherited from the previous Administration, this is another difficult decision that we have had to make to ensure that the economic well-being of our country is protected.
Baroness Meacher
Can I just raise a question? The Minister talks about the unfairness about those in the future and those in the past, but that issue exists anyway. People who started claiming 18 months or two years ago, or whatever, clearly had a different length of contributory ESA to those people who claimed any time from 1 April last year in the Government’s terms. What I was suggesting was that the conditions are changing as of 1 April next year, and it is retrospective to suggest that the conditions change from 12 months previously. That is what is retrospective. Of course, you will always have unfairnesses between the past and the future when you change laws. It is not logical to suggest that there is some sort of inequity between past and future and, therefore, there is no retrospection. I think that the Minister has to accept that there is retrospection here.
Baroness Hollis of Heigham
My Lords, perhaps I may add to the Minister’s woes. He will no doubt be aware that previous Administrations faced this difficulty when we moved from IVB—invalidity benefit—to incapacity benefit. What happened was that people on invalidity benefit remained on that benefit and only new entrants went onto incapacity benefit. That is one path. I can quite see that allowing long-term claimants to have two or three different paths is technically complicated and administratively undesirable, but it is what is most supportive and decent to the individuals concerned. Their expectations are not suddenly changed part-way through their later years.
The second path that the noble Lord could adopt would be to say that from now on, at a certain date, this will be a common rule for all new and existing applicants. That would be the middle path. What would clearly be wrong would be to say that this will apply only to new applicants and that we will knock off existing claimants who have come up to the time barrier. I have never known that in social security before—ever.
Lord Freud
My Lords, the accepted convention on retrospection is that it applies from the announcement of a measure. When the price of petrol goes up in the Budget, it goes up that night or the next night and then the Finance Bill becomes an Act four or five months later. That is the convention—you go from the date of announcement. We announced this move from October 2010.
Baroness Meacher
Perhaps I may suggest that the Budget is a completely different kettle of fish, because you absolutely have to implement financial changes on the day of the announcement—otherwise all sorts of people will play games and use the delay to do all sorts of things. However, social security is completely different. You are talking about vulnerable people dependent on benefits, and that is why the convention in the social security field is totally different from the convention regarding the Budget.
Lord Kirkwood of Kirkhope
Can I just make a point? As to the Minister’s explanation of when things start from, this announcement was made in 2010. If logic is to stay on his side, implementation should have started in 2010.
Lord Freud
Well, my Lords, what was written in the document that my noble friend Lady Thomas referred to was posited on the notice given in it, which allowed people to prepare for this change. The notice was given in—
Baroness Lister of Burtersett
Can the Minister explain what this preparation is supposed to be? How do you prepare for the loss of a benefit if you are unable to take paid work? Is it preparation for your partner to give up work? I am not sure what preparation people are supposed to be making.
Lord Freud
My Lords, one of the clear preparations is to understand whether you are now entitled instead to income-related ESA on the WRAG, or to take steps to get into a job, or whatever it is. There are a number of things, but preparation would cover all of them. However, the documents written in October 2010 were saying that this change was coming in April 2012, effectively giving 17 or 18 months’ notice that this change would apply. That is what was intended by the document.
We have taken steps to give people whose awards will end, either when the clause comes into force or shortly after, time to assess their circumstances and adjust to the change. We have written to all existing contributory ESA claimants who could be affected to make them aware of this change. It is important to remember that claimants in the support group and those claiming income-related ESA will not be affected. The noble Baroness, Lady Hayter, raised the issue of the impact on the lowest deciles. The analysis in the impact assessment shows that although many people affected are in the lowest deciles, they will tend to be fully or partially compensated by income-related ESA and those who will not be eligible for income-related benefits are typically in the middle or higher deciles.
The government amendments I have already outlined ensure that days in the assessment phase for a claimant subsequently placed in the support group are excluded from the 365-day total. Amendment 74 would go further than this; it would mean the 365-day limit for all contributory ESA claimants, including those placed in the WRAG, begins only from day 92 of the claim. This would therefore give an extra 13 weeks of contributory ESA to WRAG members, increasing their overall award to 15 months. Another effect of the amendment would be that, if claimants have repeated short-term claims and as a result they are not medically assessed via the WCA, these claims might never individually go beyond the 13-week assessment phase. If so, the 365-day time limit might never apply to their contributory ESA award. This amendment could therefore create a perverse incentive for claimants to terminate the award before the end of the assessment phase; they may also try to delay attending the WCA. We do not believe that such behaviour should be encouraged.
Amendment 75 would allow claimants receiving contributory ESA who move in and out of the support group, to start a fresh 365-day period each time they move from the support group back to the WRAG. For those claimants moving between the two groups regularly, it is likely to mean they would be able to remain on contributory ESA indefinitely. This amendment would lead to inconsistent periods on benefit for claimants. For some, time spent in the WRAG would count towards the 365-day limit while for others it would not. This is unfair. We believe that everyone should be treated the same, irrespective of when they are placed in the WRAG. I understand the noble Lords’ concern about fluctuating conditions, which may have prompted this amendment. We recognise the importance of the role the WCA plays for people with fluctuating medical conditions, as I have discussed.
To pick up one more point on the cancer issue, I want to make it absolutely clear that the present position is that anyone who is diagnosed as terminally ill and who is expected to die within six months will automatically be placed on the support group.
Baroness Hollis of Heigham
I am sorry, but could someone be diagnosed as terminally ill as a result of the biopsy and be given a life expectancy of 11 to 12 months, which may be accurate almost to the week, yet not be deemed under this condition to be terminally ill?
Lord Freud
That is correct. That is the current position but the reality is that the treatment provision is likely to catch most of those people.
Lord Patel
Earlier the question was asked if we could have a definition of “terminally ill”. I do not think there is one. This definition that you will die within six months applies where the allowance is available. But as I tried to point out in my presentation, you might be terminally ill and not die within six months. Although you might be pretty sick and even near to death, you would not qualify for the allowance.
Lord Freud
My Lords, I know that this is a very emotive matter and I have said that we are looking very closely at the recommendations from Professor Harrington. I have picked up the concerns on this matter, and I think that that is as far as I can go today.
Amendment 75A would introduce an additional income disregard for partners when calculating an award of income-related ESA. Based on the current annual personal allowance for income tax of £7,475, this disregard would amount to a gross weekly amount of £143.75. Currently, when calculating an award of income-related ESA, we provide disregards on partner’s earnings of £20 per week and a disregard of between £10 and £20 for other specified income. This contrasts with universal credit, where a disabled person would have a minimum earnings disregard of £40 per week.
The practical effect of this amendment would be that the DWP would be forced to amend existing DWP regulations to remove existing disregards and make new regulations to disregard a minimum of what, under current tax allowances, would be £143.75 per week of a claimant’s partner’s gross income when calculating entitlement to income-related ESA. If we did not amend the existing disregards, the excess would then be subject to an additional £10 to £20 disregard where appropriate. In total, this would potentially increase expenditure on the ESA by up to £500 million per year.
We do not think that this approach would be reasonable. Introducing a significant new disregard for ESA claimants would be unfair to others receiving other income-related benefits, such as claimants whose partners claim income-based jobseeker’s allowance, where the earnings disregard is currently set at £10 per week, and ESA claimants who have no partner.
At this point, perhaps I may introduce the question of what happens to payments of contributory benefits—
Baroness Hollis of Heigham
Returning to the previous point on Amendment 75A, will the Minister confirm, for clarity, that the figure of £500 million per year was related to the cost of this amendment only, not to changing other disregards? I was not clear about that from what he said.
Baroness Hollis of Heigham
Therefore, having this exclusion for this group would cost £500 million a year with no knock-on consequences for other disregards for people on JSA or whichever benefit the Minister cited. I just wish to be clear on this.
Lord Freud
We have done a relatively simple sum on this and this is the change. We have not rebuilt the whole system to make it consistent.
Baroness Hollis of Heigham
Is it therefore also net of the actual disregard that people will get, which will be £20 plus possibly some other amount?
Baroness Hollis of Heigham
In that case, before the Minister goes on to a different point, why does he think that the situation of someone whose partner is on JSA, but with no history of disability or whatever in the family, is identical to the situation of a partner who is managing to care for a person for possibly 20 hours a week or more—that is why they are on those benefits anyway—and is, on top of that, hanging on by her fingertips in the world of work? Incidentally, we have now established that this will, first, not make it pay for her and, secondly, will almost certainly encourage her to leave the labour market. Why does the Minister think that there is any equitable comparison whatsoever between that and JSA? I am all in favour of establishing simple parameters so that people know where they stand, but I should have thought that the noble Lord would accept that someone who is disabled and has a partner, or possibly a wife, caring for them for 20 hours a week and in a part-time job is none the less in a very different situation from a young couple in their 20s who are on combined JSA.
Lord Freud
My Lords, at that kind of annual cost this really is an expensive amendment. Whereas one can clearly look at elements and disregards in the system later when there is some money—I have made this point before—this is a lot of money.
Baroness Hollis of Heigham
Can the Minister then tell us what the total saving on the ESA is going to be overall so that we can see what percentage this represents?
Lord Freud
Yes. I am speaking slightly from memory but the running rate is about £1.7 billion a year. I am sorry—I have tripped myself up on that.
Baroness Hollis of Heigham
It cannot possibly be. You cannot have £500 million a year and £1.7 billion in total. That does not work, but I would be happy for the noble Lord to refer to it later.
Lord Freud
I will refer to it in a minute. Let me gather my forces. I come to the point made by the noble Baroness, Lady Lister, on ESA contribution and universal credit. We are looking to simplify the payment arrangements for cases where there is entitlement to both universal credit and contributory benefits. Customer insight research suggested that claimants would prefer a single payment of universal credit rather than two separate payments, but no final decisions have been made. The key point is that contributory ESA and JSA will continue as individual entitlements. In other words, as now, they will not be affected in any way by the circumstances of the partner.
Baroness Lister of Burtersett
I thank the Minister for his answer, for I realise it is slightly off the main amendments, but I am glad that no final decision has been made. I do not know the nature of the customer insight research but on qualitative research with individuals in couples I know, having done that kind of research myself, that you need to talk to individuals separately within couples for them to be able to talk freely to a researcher. For many women, it is important to have control over a certain amount of income. As the noble Lord said, it is not simply an administrative matter. There is a matter of principle here about having paid into the system as an individual and being able to draw out from the system as an individual, rather than having that benefit paid to your partner. I just hope that the Minister will take that point away and think about it seriously before a final decision is made.
Lord Freud
My Lords, we have had this discussion before. I come back to the point that one of the most interesting opportunities in the universal credit is the budgeting support. When I talk about budgeting support there is an element there of how you run your household finances, which we are just beginning to explore. There is huge potential in that and I am just beginning to think about what that could imply and what it means, so we will come back to this in the months to come because it has enormous promise in the areas that the noble Baroness is worried about.
Let me go through the AME savings, which were raised by the noble Baroness, Lady Hollis. Running each year from 2012, they are: £420 million; £780 million; £1,090 million; £1,330 million; and £1,380 million. The £500 million—
Lord Freud
They are the AME savings from Clause 51. The £500 million cost that we are talking about of this amendment is calculated on the basis of applying the disregard to all ESA claimants, not just those affected by time-limiting. We would have to apply it to everyone.
Baroness Hollis of Heigham
Is the Minister saying that the £500 million cost of Amendment 75A exceeds the total amount of savings on all these changes in 2012?
Lord Freud
Yes. This is the ESA income-related claimants. I think that has a £500 million average cost per year spread over that period, but it is a per year cost. No, I am sorry; it is a steady-state £500 million, so it should be looked at against the £1.3 billion or £1.4 billion figures as a proportion.
Baroness Hollis of Heigham
These figures seem deeply implausible to me, but we will work on them. Thank you.
Lord Freud
Additionally, the amendment would likely weaken the financial incentive for a benefit claimant’s partner to take up full-time work. It would increase the number of people who qualify for income- related ESA and therefore give them automatic entitlement to housing benefit and/or council tax benefit at a cost of approximately £50 million per year.
In addition, if Amendment 75A were accepted and we did not mirror that larger disregard in the housing benefit and council tax regulations, it would mean disparate treatment between those claimants passported automatically on to housing benefit or council tax benefit because they are entitled to income-related ESA, and those who claim housing benefit or council tax benefit on low-income grounds. That would be unfair. We estimate that it would cost approximately £50 million per year to mirror this amendment in the housing benefit regulations. That is in addition to the £50 million previously mentioned.
If the amendments tabled by noble Lords were accepted, either singularly or collectively, it would significantly reduce the expected benefit savings of these measures. If Clause 51 did not stand part of the Bill, the entire savings projected by this measure would be lost. That amounts to around £5 billion in total by 2016-17, and we went through the individual years.
Baroness Hollis of Heigham
I am sorry; the Minister said £5 billion went through the individual years. My figures add up to £3.5 billion.
Baroness Hollis of Heigham
That is £420 million, £780 million, £1,090 million and £1,380 million.
Lord Freud
You missed out £1,330 million. I have £420 million, £780 million, £1,090 million, £1,330 million and £1,380 million. That is nearly £5 billion.
Accepting Amendment 71M would reduce the total savings by around a third by 2016-17, which is £1.6 billion. Accepting Amendments 72A or 73 would reduce savings by around £420 million, which represents the entire savings forecast projected for 2012-13. Amendment 74 would reduce savings by around £430 million in total by 2016-17.
Baroness Lister of Burtersett
I apologise if I missed this because I know that the Minister has had an awful lot of ground to cover on so many different amendments, but did he explain why the assessment period is being included? The way that the policy has been put across is that if you are in the WRAG, you will get contributory ESA for only a year. But actually that is a year minus 13 weeks because you get a lower rate of benefit for that. Apart from cost, and by 2016-17 only a third minus 3 per cent of the savings would be forgone—I realise it is more up front, but it diminishes—what is the principal reason for including the assessment period?
Lord Freud
The reason is that we never intended to take it out in the first place. If someone is waiting to go into the support group it is not appropriate to have them assessed as if they are in the WRAG group.
Baroness Lister of Burtersett
But this is someone who is going into the WRAG group, so they are getting only a year's contributory benefit. It will be a year minus the assessment period. What is the point in principle for cutting short what many people are already calling an arbitrary time limit on their entitlement?
Lord Freud
It is interesting that noble Lords are looking at the assessment phase as a different benefit, which it is not. It is the same benefit. It is just a phase. You go on the ESA assessment phase and then it discovers what type of support you are on—the support group or the WRAG group. That is what the assessment phase is doing.
Baroness Lister of Burtersett
Forgive me if I am wrong and I expose the frailness of my knowledge of social security, but I thought that claimants got a lower rate during the assessment phase. Therefore it may be called the same benefit but, in terms of the money people get, it is less. That period is not being included. That is why I am saying that it is a year minus 13 weeks. Yes, they are getting a benefit but at a lower rate.
Lord McKenzie of Luton
I can support my noble friend: as I understand it, people get the basic JSA rate in the assessment period.
Baroness Hollis of Heigham
You might as well be on JSA and be done with it.
Lord Freud
The assessment phase would last beyond 13 weeks. It can sometimes be a long period, but claimants are always paid the full rate from week 14 of their claim.
Baroness Lister of Burtersett
Is the noble Lord saying that you can get backdated money for the assessment period?
Lord McKenzie of Luton
Surely that is not right. Is it backdated to the end of the assessment period?
Baroness Hollis of Heigham
Is the Minister saying that after 13 weeks you get paid a higher rate even if you have not been assessed because the assessment is taking longer than your 13 weeks? It might take 20 weeks or 25 weeks. Is that what he is saying; that it is okay for part of the period to get the higher rates but the lower rate period counts in the run-up to that? Is that what he is saying?
Baroness Hollis of Heigham
Forgive me, but that seems to be a very confused position.
Lord Freud
Whether it is confused or not, the position is that, when you are claiming the ESA rate, the first 13 weeks you are in the assessment phase you are on the lower rate. Then you go on to the standard WRAG rate from week 14.
Baroness Hollis of Heigham
My noble friend’s point is entirely valid. You are nominally, on paper, entitled to 12 months of the WRAG money, but in practice it is actually 12 months minus 13 weeks—three months—because for that period you are on a benefit that for all purposes might just as well be JSA, because it is at a lower rate and therefore should not realistically count.
Baroness Lister of Burtersett
What is the principal reason for that? How does the Minister justify it?
Lord Freud
I have to admit that I am not particularly happy about the assessment phase of ESA and how it is working. It is becoming a separate benefit in practice. I would like to look at it. It is difficult to have a set of principles around something that one is somewhat unhappy about.
I shall go on with the costs. Amendment 74 would reduce savings by around £430 million in total by 2016-17. Amendment 75A would increase expenditure on ESA by approximately £500 million per year, plus up to £50 million more on other income-related benefits. I cannot accept that we should make these amendments. They would place a very high financial cost on us in the current fiscal climate. I believe our proposed changes are right in principle and fair to the taxpayer. I urge noble Lords not to press these amendments.
Lord McKenzie of Luton
My Lords, I thank the Minister for his very extensive reply dealing with a whole host of interruptions. That must certainly be a record for this Committee.
Baroness Hollis of Heigham
I wonder if my noble friend will allow me to ask him a question? Does he not agree that this shows the undesirability of having one vast grouping all day, which means that we are constantly interrupting the Minister because he is about to move on to something else and we cannot have a discussion on different topics? It would have been perfectly simple to have turned it into something like four groups on the different issues. We could have had a coherent discussion on each of those and then gone on to a wider discussion at the end. This way, we have been to-ing and fro-ing trying to get information. No wonder the Minister has sometimes had to shuffle his papers. It is because of the way that this has been grouped. It is madness.
Lord McAvoy
I am not as sympathetic as the noble Baroness, Lady Hollis, on this because we co-operated in getting the groupings and the Minister knew the groupings that were coming. That sounds uncharitable, but there is no doubt that he has made absolutely every effort. That it has taken so long to answer questions demonstrates the complexity of the whole group of amendments.
Lord Freud
I feel drawn to say, in response to the noble Baroness, that I was very happy with how the amendments were grouped, because it allowed me to deal with a complicated set of issues in their entirety. When amendments are degrouped you very often find that you are arguing one thing at one time and then miss a key part of your argument and have to repeat it. So I would plead with the noble Baroness to accept that at least I was very happy with how it was done and that we got through a very difficult set of issues—I know how difficult they are—in reasonable order.
The Deputy Chairman of Committees (The Countess of Mar)
My Lords, if I could offer some guidance, the groupings are informal and noble Lords are perfectly at liberty to decouple amendments if they are not happy.
Baroness Hollis of Heigham
The noble Baroness the Deputy Chairman of Committees is absolutely right, but you do have to lead on the amendment group to have that right.
Lord McKenzie of Luton
To satisfy both my noble friends, there is a balance to be struck between making decent progress on the Bill and having coherent discussions. I hope that we have achieved both, or will achieve both, today.
I come back to the Minister’s response, but will comment on what other noble Lords have said. The overall tenor of our very powerful debate this afternoon is clearly to the effect that people are extremely unhappy with these provisions. Comments have ranged from suggesting that we should not have them at all, with Clause 51 not standing part, to a series of detailed amendments. Noble Lords have made a range of extremely pertinent points. The noble Baroness, Lady Meacher, talked about job prospects and asked where the fairness was in this. My noble friend Lady Lister talked about the value of the contributory principle and making sure that it does not get lost, as well as the quality impact assessment and the challenges of denying people an independent source of income.
The noble Baroness, Lady Thomas, talked about the changing of the rules. We do not have an answer yet as to why the Government changed their mind on that, and the Minister may wish to respond further in due course. The noble Baroness, Lady Morgan, raised a range of concerns focused on how the WCA works, and how people access the support group, particularly those who are terminally ill. The noble Lord, Lord Wigley, was one of those noble Lords concerned about whether Clause 51 should exist at all, while the noble Lord, Lord German, talked about the WCA getting it right. I absolutely agree, and we have common cause on that, but we should get it right irrespective of these provisions as it serves a purpose around conditionality and support that should be available to people.
As for what is arbitrary and what is not, I warm to the Minister’s definition—it is what others do, so it is not arbitrary. On that basis, we might almost apply to join the euro, but I do not think that the Minister would suggest that.
Our amendment fundamentally looked at these things being dealt with by way of orders, so you could build an evidence base as to what was appropriate. Yes, we had a two-year minimum, which one would accept was not based on the most robust of evidence. My noble friend Lady Hollis warmed to the thrust of the amendment, as it was one way to ameliorate some of the impacts of the provisions, although it does not deal with them entirely. For example, it does not deal with the independent source of income, which my noble friend Lady Lister was concerned about.
My noble friend Lady Gibson was also concerned about the very existence of Clause 51, and there were some very moving examples from my noble friend Lady Hayter. The noble Lord, Lord Patel, led the charge on the challenge that the assessment period should not be included, that Clause 51 should not be there at all and that there should not be a start to this before the legislation comes into force. There was an interesting reference to Lib Dem conference resolutions, which we might keep in our sights.
However, we should thank the Minister for a very full series of exchanges on a lot of detailed points. Fundamentally, this comes back to costs, which he always quotes at us. I agree that we shall have to study Hansard and get into the figures. He could not resist the jibe about the deficit, although I wish he had because I could have resisted pointing out that we have had an international financial crisis that has affected all major economies.
Lord McKenzie of Luton
Driven by bankers—thankfully not accountants. With great respect, I normally find the Minister convincing but he was not convincing on the assessment period, and at the end of the day acknowledged that he had concerns about that. As to the definition of whether the proposal is backdated or not, starting this process up to 12 months before the legislation comes into effect is a very unusual way to proceed.
Part of the reason why we are going down this path is that the Minister said right at the start of his response that we should expect people to avail themselves of the help and support available. He also said that a lifetime on benefits is no longer an option. I would not disagree one iota with that, but no one is arguing for a lifetime on benefits—certainly not for those who can move closer to the labour market and into work. That is not a matter between us, but the noble Lord did not deal with the point about the WCA, around which there is a lot of discussion. We all want it to work as it should do, but is there not, when people are allocated to the WRAG or the support group—certainly the WRAG—a prognosis that goes with them that says how long they are likely to be in that group and, therefore, when they are likely to be fit to join what is currently the JSA group? That is the hope and that is how it works. The Minister has said that in the past and told us that that prognosis is tested before someone is moved off benefit. We therefore have a process by which an individual judgment is made about how long people will be assumed to be in the WRAG, and then ultimately, when that time is up, whether they should remain in the WRAG, go into the support group or join JSA. We have an individualised process, do we not? Why can that not be used?
This is where we fundamentally differ from the Government: if the object is to ensure that people can stay in the WRAG for as long as they need to and have the benefit of the contributory ESA system for as long as is necessary, is that not a fair way of proceeding? On the other hand—I think that this is probably the Government’s position because we need to save money—is the Minister saying, “We do not care how long you need to stay in the WRAG; after a period your contributory benefit will be chopped”? It seems that the position is not related in the Government’s mind to how long people should need support in the WRAG.
Lord Freud
If the noble Lord would like me to, I can give him a little information on that. The latest data show that among all those assessed to be in the work-related activity group at their initial WCA, 91 per cent have a prognosis of 12 months or less. However, it is placing an awful lot of weight on such a prognosis to build a system around it. I would personally feel pretty uncomfortable about it. However, the data make the point about the expectation that the curve is rather similar to what you would expect regarding the potential for people to come off—certainly, the WRAG element—on that prognosis.
Lord McKenzie of Luton
Is it not the case that the same prognosis is used for remuneration of providers in the work programme because that determines which remuneration slot they are in?
Lord Freud
The standard position on the work programme is that people whose prognosis goes into the three-month phase then go into work programme, which provides a heavy incentive at that stage to help those people back into the workplace.
Lord McKenzie of Luton
Perhaps I might move on. The noble Lord has stacked up the costs of these various amendments. However, the Government have not reflected on who is bearing those costs. That is a point made by several noble Lords during the debate. It is not just spread equally across the population or pro rata to resources across the population. It is concentrated on a range of people who are in the work-related activity group, who we want to move closer to the labour market but who are currently neither in work nor, according to the analysis, fit for work. That is the fundamental issue that we are trying to get to grips with. I am sure that the amendments that we have discussed in Grand Committee today will all be withdrawn but I have no doubt that we will revisit them in one form or another when we get to Report.
I thought that the noble Lord had reassured me on the decoupling of people in the support group when he first spoke. When we followed that up, I was much less reassured. The claim that this does not affect people in the support group could be difficult to sustain in circumstances where they get disconnected by the national insurance rules. I urge the Minister at least to reflect on that to see whether there should be some change in or expansion of the linking rules. We are dealing here with a situation where, currently, there would be a continual claim whether someone was in the WRAG or the support group. We seek only to establish that if that link in the WRAG is broken because of the 365-day rule, when people end up in the support group they are not disconnected from those earlier national insurance contribution conditions, particularly the first one. We will certainly want to come back to that in detail.
We will not have a meeting of minds on this today but I am sure the Minister will reflect, as he always does, on the data, facts and arguments that have been put to him. It seems very clear today that, overwhelmingly, those arguments have been against what the Government are proposing. Having said that, I beg leave to withdraw the amendment.
Lord Freud
“(3) In calculating for the purposes of subsection (1) the length of the period for which a person is entitled to a contributory allowance, the following are not to be counted—
(a) days in which the person is a member of the support group, (b) days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b), and(c) days in the assessment phase, where the days immediately following that phase fall within paragraph (a) or (b).(4) In calculating for the purposes of subsection (1) the length of the period for which a person is entitled to a contributory allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).”
Lord Freud
“(5) In calculating for the purposes of subsection (4) the length of the period for which a person is entitled to an employment and support allowance, the following are not to be counted—
(a) days in which the person is a member of the support group (within the meaning of Part 1 of the Welfare Reform Act 2007), (b) days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b) of the Welfare Reform Act 2007, and(c) days in the assessment phase (within the meaning of Part 1 of the Welfare Reform Act 2007), where the days immediately following that phase fall within paragraph (a) or (b).(6) In calculating for the purposes of subsection (4) the length of the period for which a person is entitled to an employment and support allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).”
“Condition relating to youth
For paragraph 4 of Schedule 1 to the Welfare Reform Act 2007 (condition relating to youth) substitute—“4 The third condition is that—
(a) the claimant has limited capability for work-related activity;(b) he was under 20 when the relevant period of limited capability for work began; and(c) he has had limited capability for work for at least 28 weeks.””
Baroness Lister of Burtersett
I rise to speak relatively briefly, the Committee will be relieved to hear, to move the amendment and to support the noble Lord, Lord Patel, in opposing the Question that Clause 52 stand part of the Bill.
Currently, people who are disabled from birth or early in life may claim ESA in youth from age 16. This has, in different guises, been a feature of the social security system since 1975. When it was incorporated into ESA in the Welfare Reform Act 2007, I understand that the then Opposition did not question the inclusion of young people. Indeed, during the Lords Committee stage, the noble Lord, Lord Skelmersdale, from the Front Bench, asked my noble friend Lord McKenzie of Luton why young people should receive a lower rate of ESA during the initial assessment phase. The implication was that the Conservatives not only supported the inclusion of young people, but thought they should be included on more generous terms. Similarly, Liberal Democrat spokespersons in both Houses, one of whom was Danny Alexander—now in the Treasury—were at that time pushing for more generous treatment of young people.
It thus seems rather strange that in the other place, the Minister commented that,
“It seems to be an oddity that a young person with a disability or a health challenge, regardless of their circumstances, should automatically be able to migrate to contributory ESA even if they have never worked”.
As the Minister acknowledged:
“This may not have been debated hotly in the past”.—[Official Report, Commons, Welfare Reform Bill Committee, 3/5/2011; col. 654.]
I would suggest that this is because it has been accepted for nearly 40 years that it is fair and proper to include disabled young people in the contributory system.
The availability of contributory ESA provides those who become severely disabled in youth with a sustainable income to support their transition to independent adulthood in particularly difficult circumstances. It has long been accepted that the normal contribution conditions should not apply in order not to exclude a group whose members have not had the opportunity to build up a contribution record and may well not have that opportunity in the future through no fault of their own. For those who are hung up on the “something for something” principle, I think we can agree that it can be suspended in these circumstances. Instead, the removal of this long-standing right will undermine the goal shared by all of us of supporting disabled people to live independent lives.
In fact, the justification that we have received for ending the long-standing consensus on this matter is nothing to do with principles or even costs, unlike Clause 51. It is primarily, I understand, about administrative simplicity. It is stated that abolition of the youth concession is a simplification and will create consistency in the run-up to the introduction of universal credit. I am not sure that any policy that increases reliance on means-tested benefits, which the impact statement acknowledges will be the case, adds to the sum of simplicity in the benefits system. I do not think that tidy alignment for administrative purposes is a good enough reason to withdraw a long-standing right, not least because alignment of the rules with those for contributory ESA would be another option open to the Government.
A rather more persuasive argument on first sight is that those receiving contributory ESA are not automatically entitled to passported benefits, to which they would be entitled were they receiving income-related ESA. However, this is true of those receiving contributory ESA generally, not just young people. Therefore, it is a problem that should be resolved for all this group as part of the current review of passported benefits. Can the Minister assure us that those who would have qualified for income-related ESA under the present system will continue to receive passported benefits under the new regime? If he cannot give us this assurance now—and I understand about SSAC looking at all this—then this justification is rather weakened.
The availability of contributory ESA is of particular importance to certain groups of disabled young people. I am grateful to the Child Poverty Action Group for providing me with a number of case studies that illustrate the kind of people particularly affected.
First, there are young disabled people who have been temporarily in and out of local authority care or have moved areas, as it provides a secure, independent income. I know that there are a number of noble Lords here who have particular concerns about this group of young people generally. I do not think that the names I shall use are real but they are real examples. Sanjeet, who is in foster care, is at school and planning to go to college. He is aged 18, severely disabled and lives with foster carers. He was advised to claim ESA in youth to give him some of the extra income and independence that he needs. We should note that a severely disabled young person such as Sanjeet may have limited earnings capacity during his life and may not have parents who can provide financial support. If he has to rely on a means-tested benefit, he will never be able to build up savings beyond the £16,000 limit to help him with equipment, housing and so on for independent living.
Another example is Anna, who lives with a kinship carer. She is 16 and has been living with her grandmother since her mother died. Anna has severe problems with depression and post-traumatic stress. She is not working or in education. Her grandmother is struggling to support her out of her pension. Anna was advised to claim ESA in youth to provide her with her own independent income.
Another group is young disabled people who have built up savings to be used for an adapted car, disability equipment, a deposit on a property or future care needs. In the absence of non-means-tested support, using savings for basic daily living costs will have long-term implications for the welfare state when these people’s carers—usually elderly parents—are no longer able to provide care and accommodation.
An example of this group is Jackie, who is 19 and in full-time education. She has Down’s syndrome and gets the DLA highest-rate care component and lower-rate mobility component. When her parents stop claiming benefit for her, she can claim ESA in youth as her own independent income. Jackie’s parents think that their daughter will never work and she will not have an inheritance from them, so having a contributory benefit of her own means that she will have the option of saving from her DLA towards the cost of future disability-related needs. If her parents were able to leave her some money, she would be able to keep it to fall back on if she had contributory ESA in youth but not if she had to rely on income-related ESA with the capital limit.
Another group is young disabled people who may be vulnerable to forming unsuitable relationships or may avoid forming a suitable relationship due to fears about losing an independent income. The case study is Caitlin, who has learning difficulties and is aged 20. She gets DLA and is attending a life skills course at college. To move towards independence, she is advised to claim ESA in youth, topped up by income-related ESA. Caitlin is currently living at home with her parents. Having a contributory benefit of her own means that she could in the future choose to form a relationship without fear of losing her independent income.
Moving on to young disabled people in education, the example is Nadia, who has cystic fibrosis. She is at university and gets ESA in youth. She has tried to work but has been unsuccessful because of the effect on her health. Unlike other students, she cannot support herself through university by working during the year or in the vacations. Her ESA in youth helps to make up for this. Because it is contributory, it is not reduced because of her student loan. Had she needed to claim income-related ESA instead, she would have been entitled to little or nothing during the year because of the means test.
The CPAG is also concerned about young disabled people trying out work. It says that the removal of contributory ESA in youth would bring young disabled people into the universal credit system. The current permitted work rules for ESA provide a useful opportunity for young disabled people to try work without having an effect on their benefits, in some cases for an indefinite period. There are concerns that the transfer to the universal credit system will increase complexity and reduce the incentive to work for people whose main objective is stability and security of income. The impact assessment says that there may be a “positive employment impact” from this change, but it does not explain how and why, so perhaps the Minister could do so.
The impact assessment also says that about 15,000 people a year are likely to be affected. A fifth of these, who have no other income, will receive the same amount of benefit in income-related ESA. It is estimated that a further 70 per cent will qualify for income-related ESA, either at the same rate or at a lower rate, with an estimated average loss of £25 a week. That is not an insubstantial amount, even if it does open up eligibility to passported benefits.
Finally, one in 10, or 1,500 a year, will lose all entitlement to benefit, probably because they have a partner in full-time work. This is a small group. I hesitate to use the word vulnerable because the noble Baroness, Lady Campbell of Surbiton, has reminded us that disabled people are not intrinsically vulnerable but made vulnerable by disabling institutions and circumstances. This clause will increase the vulnerability faced by a small group of young disabled people, particularly those in the kind of difficult circumstances I have mentioned. The savings are miniscule: an estimated £11 million net per year.
Who was consulted on the likely impact of what I am afraid I see as a mean-minded little measure? I find it difficult to believe that the Minister is comfortable justifying it. I hope that he will therefore be able to give us some indication that he is prepared to reconsider and, at the very least, that he will look favourably on this amendment, which would at least retain contributory ESA for young people in the support group. This would be consistent with the exemption of this group from the one-year time limit. I beg to move.
Lord Patel
My Lords, I support the amendment moved by the noble Baroness, Lady Lister, but I would also remove Clause 52 from standing part of the Bill. Many charities including CLIC Sargent, a charity which supports children with cancer, and other disability charities are also against this clause. The charities, such as that leading charity for young people with cancer, have serious concerns because of the negative impact that proposals in the Bill will have on young cancer patients and other disabled young people. I believe the Government must undertake a proper assessment of the financial support available to those young people with long-term health conditions and/or disabilities before making these changes, as well as considering the cumulative impact of their programme of welfare reform on this age group.
I emphasise that my proposals do not seek to secure higher rates of benefit for those aged 16-24 but simply to ensure a more level playing field in relation to access to benefits and financial support. For example, I believe it is wrong that students with a long-term illness must already be in receipt of DLA to be eligible for income-related ESA. These proposals are supported by other charities too, particularly young disabled peoples’ charities.
As far as cancer is concerned, every day 10 families are told that their child has cancer. A study in 2007 found that 83 per cent of families incur significant extra costs associated with their child’s cancer treatment, with 68 per cent of families experiencing worrying financial difficulties. New research, published last December, found that on average young people with cancer spent £277 each month over and above their normal expenses, as a result of their illness. Half of those young cancer patients surveyed had to borrow money as a result of their illness. More than one in five had borrowed over £1,000, with almost one in 10 borrowing over £2,000. The top two expenses were travel and clothing.
My proposal would retain the youth provisions for contributions-based employment and support allowance and would ensure that young people with long-term health conditions and/or disabilities are not disadvantaged under the proposed new arrangements for ESA. The reason for these proposals is clear; under the youth provision, a person under the age of 20 who is not in full-time education and who has had a “limited capability for work” for 196 consecutive days can gain entitlement to contributory ESA despite not having reached the contributions threshold. ESA youth claimants are disabled people who are aged 16-19 inclusive or who satisfy the age exception rule, which revolves around rules for education or training, if aged between 20 and 25; they have at least 28 weeks of continuous medical evidence to support a claim for ESA; they are not in full-time education; they have been resident and present in Great Britain for 26 out of 52 weeks prior to the claim; and they do not meet the normal national insurance contribution requirements.
The youth rules were introduced for incapacity benefit in April 2001 as a result of provisions in the Welfare Reform and Pensions Act 1999, which were intended to,
“refocus benefit on people disabled early in life who have never had the opportunity to work and gain entitlement to incapacity benefits through the payment of contributions”.—[Official Report, Commons, 6/11/00; col. 96W.]
The rules were carried over into ESA following the Welfare Reform Act 2007, again to ensure that young people who might not have had the opportunity to build up a sufficient contribution record would not be excluded from the non-means-tested allowance.
The Government intend to abolish the youth condition as part of the Welfare Reform Bill, as well as time-limiting its receipt to 12 months for existing claimants. The justification for this change, as set out in the impact assessment, is that it will simplify the benefits system and ensure consistency of treatment for those claiming ESA. This assessment completely fails to recognise that young people with long-term health conditions and/or disabilities are already in a place of disadvantage in comparison with older adults, hence the introduction of the youth condition in the first place, and that this change will entrench this disadvantage. This will mean that young people, including those unable to work because of cancer, for instance, will be extremely unlikely to be able to access the contributory element of ESA and will have recourse only to the means-tested income-related element to be subsumed into universal credit. Young people who are ineligible for the income-related component, which will include those with a partner who works more than 24 hours a week and some full-time students, could therefore lose up to just under £100 a week. This will have a devastating impact on those who are unable to work and are struggling with the significant additional costs of a cancer diagnosis.
The eligibility of young people for benefits is extremely dependent on their circumstances, particularly in relation to their education status. There are serious concerns, for example, about how students are treated under the system. Full-time students are able to claim income-related ESA only if they are already in receipt of DLA. I can give noble Lords a case study. This is another example of how the eligibility rules currently disadvantage young people. I am also concerned about the knock-on effect of many young cancer patients who are students becoming ineligible for DLA as a result of the introduction of PIP, removing their eligibility for ESA. It is critical that the Government ensure that the eligibility of students with long-term health conditions and/or disabilities for ESA is not dependent on their receipt of DLA.
I shall give noble Lords an example of a student. A young woman of 20, who was a full-time university student, was diagnosed with an aggressive sarcoma and came home to have treatment. Her mother is a single parent on income support with a younger child. The mother’s former partner died of cancer during the young woman’s treatment, meaning that the mother no longer received child maintenance for a younger child. The young woman was refused DLA initially and, as a result, was ineligible for ESA. In addition, this meant that the mother was not eligible for carer’s allowance, nor did the patient have access to a student loan, as she had taken a year out from university to have treatment. The family of three was therefore living on the mother’s income support alone and was in huge financial trouble, completely unable to pay the bills and under a lot of stress. The social worker, supported by CLIC Sargent, applied for a reconsideration and the patient was awarded DLA, which meant that she could get ESA, her mum got carer’s allowance and they got some housing and council tax benefit. Without the DLA and other benefits, this family would simply not have been able to cope financially.
A further 10 per cent of people will lose almost £100 a week by virtue of not qualifying for income-related ESA. Over a year, this amounts to £5,000. Only 20 per cent, or just under 3,000 claimants, will get exactly the same amount of income-related ESA that they would have got under the youth provisions. Based on government estimates, this loss of income may affect as many as 10,000 people by 2015-16. It is wrong that this saving should be levied from such a small group of vulnerable young people. Indeed, the department’s own impact assessment notes:
“The abolition of the ESA ‘Youth’ provisions is more likely to have an impact on disabled people because ESA is directly targeted at people with health conditions that limit their ability to work. There is a risk that the affected group will be more likely to need more support because of their condition than all ESA customers”.
My amendment is linked to my subsequent amendments in that they all seek to create a more level playing field for those young people with long-term health conditions and disabilities who require support through the benefits system.
Baroness Hollis of Heigham
I wanted to say only that I support the very moving amendments of my noble friend Lady Lister and the noble Lord, Lord Patel. When we introduced the 1999 Act, which I remember vividly, and replaced invalidity benefit with incapacity benefit, we considered and decided against the proposals that are now being introduced. This was primarily on the grounds of decency, but behind that lay another argument. The group that we were most concerned about at that time was not so much the cancer patients to whom the noble Lord, Lord Patel, referred, but those people with severe learning difficulties who would never find their way fully into the labour market and, as a result, could never build up contributions or savings. They might at some point receive a modest legacy or something that would help them but we did not want contributory IB to be dependent on that lottery. Therefore, we did not go down that road. Given the very small sums of money involved, in the interests of decency and given that such young people cannot build up the financial resources—and often the practical resilience, with the help of partners and so on—to allow them to cope, I very much hope that the Minister will think strongly about reconsidering the approach taken in Clause 52.
The Earl of Listowel
My Lords, briefly, I join in the request for the Minister to think very carefully about these matters. I have been moved by the speeches on this amendment. Reference was made to children leaving care, which certainly resonated with me. We know that disabled children are greatly overrepresented among children in care. We know that the transition from care is very difficult for many children without disabilities, so those with disabilities may be doubly disadvantaged as they make that transition into adulthood. Furthermore, we also know that for children with disabilities, in the general run, the turnover of social workers and many disturbances mean that the transition to adulthood and adult services is often very problematic. There are many good reasons why this amendment should be given careful consideration. I look forward to what I hope will be a sympathetic response from the Minister.
Lord McKenzie of Luton
My Lords, on this occasion I am happy to be at one with my noble friend Lady Lister and the noble Lord, Lord Patel. I am not sure that I am happy to be reminded about being assailed from the left by the noble Lord, Lord Skelmersdale; I try to put those memories far behind me. These are two important amendments and I hope that the Government will consider them seriously and take them on board. As my honourable friend Stephen Timms said in another place, it is,
“very hard to understand the Government’s justification for abolishing ESA for those people”.—[Official Report, Commons, Welfare Reform Bill Committee, 3/5/11; col. 645.]
He said that it is a measure that seems “unreasonably punitive”. I agree.
Lord Freud
My Lords, I shall briefly explain what the existing rules are for young people. Special conditions for young people who are exempt from meeting the usual PAYE national insurance conditions are set out in paragraph 4 to Schedule 1 to the Welfare Reform Act 2007. These provide that a person aged 16 to 19, or 20 to 25 in certain prescribed circumstances, who is not in full-time education and has had a limited capability for work for 196 consecutive days, will be entitled to contributory ESA. No other age group can qualify for contributory ESA without having paid or being treated as having paid national insurance contributions. Nor does any other contributory benefit have similar arrangements. The vast majority of claimants who presently receive contributory ESA on the grounds of youth—around 90 per cent—are expected to receive income-related ESA. Those who do not qualify for income-related ESA are likely to have capital in excess of £16,000 or a partner in full-time work who may be entitled to working tax credit. Clause 52 removes these special rules.
Baroness Lister of Burtersett
My Lords, perhaps it is the lateness of the hour but I did not think that the Minister read his brief with his customary gusto. I hope that that reflected his embarrassment at trying to justify what I called a mean-minded measure. I did not know that the previous Government had considered this, and I am very glad that they decided not to take it further, as my noble friend said, on the basis of decency. We are talking about decency here and this is an indecent clause. The amendment is purely a fall-back amendment. It would be much preferable if the Minister simply said, “We will continue with the status quo”. Therefore, the amendment would not be necessary. It is a minimalist amendment and, if it creates new problems, they could of course be considered. However, if the clause were to be withdrawn, we would not have to worry about the amendment.
I take the point about why the Minister cannot give us an assurance now about passported benefits, but I suggest that that should not therefore be used as a justification for this measure, given that we do not know who will be receiving passported benefits under universal credit. The Minister said that no other age group has this kind of concession. Of course there is no other age group because any other age group would normally be in paid work and be able to get their contributions. The whole point is that this group cannot be in paid work to get their contributions. I have to say that I am disappointed by the Minister’s response and I hope that perhaps he will reflect on what has been said and think again about this. He then came back and said that there would be a cumulative saving of £10 million. I mean, really—£10 million is absolute peanuts in public spending terms.
Baroness Lister of Burtersett
A margin of error—I thank my noble friend. We are told that this is not about saving money. Therefore, it is totally inappropriate to say what the cumulative savings will be if it is not about saving money. With a heavy heart, I beg leave to withdraw the amendment.
Lord Freud
My Lords, this may be a convenient moment for the Committee to adjourn until Thursday at 2 pm.
House of Lords
Crime: Self-defence Homicide
(12 years, 6 months ago)
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Lord Mackenzie of Framwellgate
To ask Her Majesty’s Government whether they will issue the police with further advice or guidance on self-defence homicide cases, in the light of recent decisions by the Crown Prosecution Service.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Ministry of Justice is working with the Home Office to update the code of practice made under the Police and Criminal Evidence Act 1984 to give the police further such guidance. A revised code was published for consultation on 1 November. That consultation will end on 24 January.
Lord Mackenzie of Framwellgate
I thank the Minister for that Answer. Does he agree that when burglars enter an occupied dwelling by criminal trespass and as a result one of the burglars is killed or seriously injured by a householder who is clearly defending himself, the public reaction generally is that the burglar deserved everything that he got? It is clear that this matter has to be seriously investigated, but is it really necessary, except in serious cases, for the police formally to take the householder into custody and arrest him with all the consequences that that involves, including searching, placing in cells and so on? Is it not possible for the police to use their discretion more often and to investigate the matter by inviting the householder to co-operate without formal arrest? After all, he is hardly likely to abscond. Does the Minister also agree that recent, highly publicised decisions do not capture the public mood? After all, liberty is precious and should not be removed lightly, particularly from an innocent victim.
Lord McNally
My Lords, I fully appreciate many of the points that the noble Lord, Lord Mackenzie, made in that question, which echoed a number of points that were raised in a debate initiated by my noble friend Lord Blencathra on 20 October. Following that debate the Director of Public Prosecutions, Keir Starmer, wrote to me to meet some of the points made in that debate by the noble Lord and other Peers. The director made the point that the CPS had explained that in certain circumstances the police may be advised that an expedited, streamlined file is required following initial investigations by the police. However, he made it clear that the CPS reserves the right to ensure that adequate time is allowed to conduct a comprehensive review of all the evidence available, in accordance with the Code for Crown Prosecutors.
Lord Elystan-Morgan
Does the Minister accept that the principle of self-defence, whereby a person is entitled to defend himself or any other person from unlawful attack by using no more force than is reasonably necessary, is well ensconced in our law, well understood by juries, and is fair and clear? Furthermore, does he accept that the common law has enshrined this principle for a very long time; that it was spelt out in detail in the case of Palmer 40 years ago, and, indeed, enshrined in Section 76 of the Criminal Justice and Immigration Act 2008; and that any doubts that exist exist more in the minds of tabloid editors than of judges and lawyers?
Lord McNally
My Lords, as always, there is a great deal of wisdom in what the noble Lord says—and a great deal of accuracy as well. We intend to provide greater clarity with this new guidance and through the clauses in the Legal Aid, Sentencing and Punishment of Offenders Bill, which will be coming before this House shortly. It is certainly true that, in so doing, we will be bringing into statute what is already a very fixed principle in our common law.
Lord Bach
My Lords, Clause 131 of the Bill that the Minister just mentioned is the one clause that deals with this issue of self-defence. However, what is not clear about the law as it exists at present? That feeling is quite widespread across the House. Why does it need another clause in another long Bill?
Lord McNally
I think that the answer to that was indicated in the previous question and by the fact that the noble Lord has tabled this Question today. There are newspaper articles and general assertions made about what is right or wrong. Under our common law, home owners, small shopkeepers and householders can use reasonable force to defend themselves or their properties and will not be prosecuted. My right honourable friend the Lord Chancellor has made clear that he believes that the current law is broadly in the right place. However, we believe that it does no harm, in the light of a lot of these questions and articles, to make it clear in the forthcoming Bill. I think that it will do a lot of good in establishing where people, including the police, are positioned in this. It will also deter any thought that we are drifting towards any kind of endorsement of vigilantism or keeping a six o’clock special under the pillow. This is a consolidation measure to clarify the law.
Baroness Farrington of Ribbleton
My Lords, will the Minister clarify the question from my noble friend Lord Mackenzie about the nature and circumstances in which formal arrest takes place?
Lord McNally
I think that I have made that clear. We are consulting on guidance. However, the trend of the Question tabled by the noble Lord, Lord Mackenzie, was that somehow policemen could make an instant judgment. Circumstances are very varied in these situations and the Director of Public Prosecutions has made it clear—and I think that the draft guidance implies this—that although police are invited to use common sense and discretion when assessing circumstances, the Director of Public Prosecutions cannot abandon his responsibilities in examining whether or not a crime has been committed and should be prosecuted.
Lord Foulkes of Cumnock
My Lords, will the Minister make clear to the viewers and listeners from north of the border that all the answers he has given so far apply only to England, and perhaps also to Wales?
Lord Foulkes of Cumnock
Yes, including Wales, thank you. Will the Minister consider having some discussion with his counterpart in Scotland about lessons learnt from Scots law, which very often—and, I think, in this case—is superior to English and Welsh law?
Lord McNally
I am very happy to have such discussions. The noble Lord would be amazed, in the 18 months I have been in this job, how often the advice is: “They actually do this a lot better in Scotland”.
Economy: Monetary and Fiscal Policy
(12 years, 6 months ago)
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Lord Barnett
To ask Her Majesty's Government how they are co-ordinating monetary and fiscal policy in the current economic climate.
Lord Peston
My Lords, on behalf of my noble friend Lord Barnett, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, the independent Monetary Policy Committee has operational responsibility for monetary policy. Fiscal policy is a competence of the Treasury. When making its monetary policy decisions, the MPC takes into account fiscal policy, among other factors, when judging the outlook for growth and inflation. A non-voting Treasury representative attends monthly MPC meetings and plays a key role in ensuring the appropriate co-ordination of fiscal and monetary policy. This includes, when appropriate, briefing the MPC on the Budget.
Lord Peston
I thank the Minister for that. Bearing in mind that the monetary policy of the Bank of England is failing in its statutory duty to hit the inflation target set by the Government and does not even seem to be trying, and that fiscal policy has got us nowhere near full employment or a sustainable rate of real growth, is it not the case that far from there being co-ordination of monetary and fiscal policy, what we see on the part of the Government is simply an utter shambles?
Lord Sassoon
My Lords, the Bank of England is completely sticking to its statutory responsibilities and to the letter setting out its monetary policy mandate. If the noble Lord, Lord Peston, would care to look at the latest commentaries in the Bank’s quarterly documents —he is nodding—he will see that they identify the risks to inflation on the undershooting rather than the overshooting side. They identify a number of factors that will reverse the trend in inflation early in 2012. That is why the Bank decided to recommend increased quantitative easing to the Treasury to ensure that there is no risk of an undershoot on the inflation target.
Lord Newby
My Lords, does the Minister agree with the recent report of the Treasury Select Committee that, in a time of economic crisis, the buck stops with the Treasury, and that it should therefore be able to direct the Bank in such circumstances?
Lord Sassoon
My Lords, it is completely the case that the Chancellor of the Exchequer sets the inflation target for the MPC. I am sure my noble friend is not suggesting that we should go back on the previous Government’s decision, which I applaud, to give the Bank of England independence in this area. Monetary policy should be the first line of defence in the face of economic shocks.
Lord Myners
My Lords, monetary policy should be the first line of defence against the ravages of inflation. I put it to the Minister that the Government's fiscal policy, draconian as it is, is forcing the Bank of England to adopt a highly accommodative monetary policy with a disregard for the inflationary consequences, as is evidenced in the Bank's quarterly report in its failure to achieve any of its inflationary objectives over the past five years.
Lord Sassoon
My Lords, I am sorry that the noble Lord, Lord Barnett, is not here, because we have not had anything from his quote book for quite a time. I offer the noble Lord, Lord Myners, this from another place on 23 November 1978, when the noble Lord, Lord Barnett, was asking for cross-party support on inflation. He said:
“I had hoped to have the support of the Opposition instead of the carping criticism that we receive constantly … We intend to make our counter-inflation policy work”.—[Official Report, Commons, 23/11/78; col. 1468.]
Well, as it was in 1978, it is now. We should let the Bank of England get on with it.
Lord Forsyth of Drumlean
My Lords, will my noble friend confirm that opinion polls show that a vast majority of voters believe that the deficit is the same as the debt? Can I suggest to him that, in order to get across the difficulties which the Government are facing because of the size of the debt, which is still growing, he should consider putting on the Treasury building a large screen that shows how the deficit is going up every day?
Lord Sassoon
The debt is going up. Far be it from me to criticise my noble friend, who quite rightly makes this point. If the deficit was running at the level that we inherited from the previous Government, of 11.1 per cent a year—the highest deficit level in our history—it would not take very many years before our debt got up to the level of the Italian and the Greek debt. That is why we will continue to keep our deficit policy on track and keep our interest rates low. I entirely agree with my noble friend that we must be reminded about the level of debt as well.
Lord Eatwell
My Lords, in his first Answer to my noble friend, the Minister said that the Monetary Policy Committee takes account of growth and inflation, but its statutory responsibility is to take account only of inflation. When did the Treasury change the policy?
Lord Sassoon
My Lords, I will let the noble Lord, Lord Eatwell, read the actual words in Hansard tomorrow. [Interruption.] No, I am not changing anything. The MPC has to take account of the prospects for growth and inflation when it is judging how to set the direction of monetary policy. Its target is an inflation target, but it needs to take account of a wealth of other factors when making its decision, so that is what it does.
Lord Taverne
My Lords, do the Government not agree that in the present circumstances a simultaneous policy by many countries of rigid deficit reduction and fiscal contraction carries the danger of leading to depression, which will not cure the deficit?
Lord Sassoon
My Lords, I certainly agree that different countries should be taking different tracks, depending on their particular deficit and debt positions. I can only quote the concluding statement of the IMF, in its recent assessment, that:
“The current policy mix of tight fiscal and loose monetary policy remains appropriate”.
Lord Kinnock
My Lords, the Bank of England is patently seeking to foster growth with its very low interest rates and record QE, but the Government are actually depressing growth to virtually zero with their policy of public expenditure cuts that are too far and too fast. Is it not patently obvious that there is absolutely no co-ordination in the national interest at all?
Lord Sassoon
My Lords, I know that it is not for me to ask the questions this afternoon, but I wonder how much more expenditure and deficit the noble Lord, Lord Kinnock, would advocate before we risk getting into interest rates that are at the level of France, let alone of Italy. Last night the UK had 2.3 per cent 10-year interest rates, and Italy had 6.6 per cent heading for 6.7 per cent. Which would the noble Lords opposite like? We will stick to our deficit reduction plan, because that is what keeps interest rates low, and that is what our households and our businesses need.
Lord Howarth of Newport
My Lords, if the Minister insists that there is no case for altering the configuration of monetary and fiscal policy, may I draw to his attention another suggestion? Will the Government respond positively and energetically to the proposal put forward by the Society of Pension Consultants that a proportion of the vast resources held under management by pension funds could safely and sensibly be mobilised to lift investment in infrastructure and, through appropriate provision for early access to pension lump sums, to lift personal spending?
Lord Sassoon
I certainly agree with the noble Lord that infrastructure is one of the themes and priorities of the forthcoming growth review. The Government are looking at encouraging anything that encourages a further source of investment into our infrastructure from pension funds and others, so I certainly take his suggestions on board.
Devolved Administrations: Financial Flexibility
(12 years, 6 months ago)
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Lord Wigley
To ask Her Majesty’s Government what discussions they have held with the devolved administrations concerning the future working of year-end financial flexibility.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, my right honourable friend the Chief Secretary to the Treasury announced on 18 July that the Treasury has agreed with the devolved Administrations that a modified version of the budget exchange system will apply to their underspends during the spending review period. The devolved Administrations will be able to carry forward DEL underspends up to a maximum of 0.6 per cent of resource DEL and 1.5 per cent of capital DEL from one year to the next.
Lord Wigley
My Lords, does the Minister agree that it is much more prudent for the devolved Administrations to carry forward, as a capital sum, any money that is unspent at year end rather than to rush to spend it? Given that the Assembly Ministers, as he said, have agreed with the Treasury a formula for devolved Administrations to carry forward underspends within these defined limits, why was the Treasury insisting on denying to Wales, and to the National Assembly, some £400 million of accrued underspends in Wales, money which Parliament had voted for use in Wales and which had been accumulated on a formula previously agreed with the Treasury? Will the Minister now discuss with his Treasury colleagues the possibility of releasing that sum over the next two years to augment the National Assembly’s much depleted capital resources?
Lord Sassoon
My Lords, sadly, the previous Government left us with a pot of money of some £20 billion which had been unspent by departments, which, if now spent, would simply increase our deficit; it would increase the stock of debt by £20 billion. It was necessary for the Government, as part of our deficit reduction strategy, to cancel that EYF, but the stock of cancelled underspends in the devolved Administrations was 8.4 per cent of the total, compared with 15 per cent of expenditure, which the devolved Administrations represent, so what they were prevented from spending was rather less proportionately than applied to the United Kingdom as a whole.
Baroness Randerson
My Lords, the decision not to allow the EYF for Wales was something which took many people there by surprise. Can the Minister tell us whether it took the Government of Wales by surprise or were there discussions with the Government prior to the decision by the Treasury at the time of the Budget?
Lord Sassoon
My Lords, as I have already explained, the Government inherited an extremely difficult deficit position. We took decisions that affected the whole of the United Kingdom and this one was consequential on decisions that needed to be taken to bring the deficit position under some sort of control so that departments were not completely without controls on their expenditure. After that, there were detailed discussions led by my right honourable friend the Chief Secretary, which led to the proposals which are the subject of this Question.
Lord Touhig
My Lords, the £400 million, to which the noble Lord, Lord Wigley, referred, could certainly help to sustain public services in Wales and boost the economy. Parliament has voted that money for the Welsh Assembly. Does the Minister not think that it is arrogance on the part of the Government to ignore the will of Parliament?
Lord Sassoon
My Lords, a lot of factors have to be taken into account in setting expenditure for the devolved Administrations, not least our favourite Barnett formula, but the fact remains that expenditure on a head-count basis in Wales will, in the present period, be some 12 per cent higher than the per head expenditure in the United Kingdom.
Lord Eatwell
My Lords, was the Welsh Assembly consulted before this decision was made?
Lord Sassoon
My Lords, the United Kingdom Parliament—this House and another place—was not consulted before an awful lot of spending decisions were taken. That is the way that Governments make spending decisions.
Lord Roberts of Llandudno
My Lords, the Minister has, I think, criticised the Barnett formula. What plans does he have to bring in a different formula regarding Wales and Scotland?
Lord Sassoon
My Lords, would I ever be so bold as to criticise the Barnett formula? The Barnett formula has been widely questioned, not least by the noble Lord, Lord Barnett, himself. However, the Government’s priority has to be stabilising the public finances. If, in due course, the formula is to be superseded, the challenge is that there is no consensus on how to measure needs, which would be required to bring in some needs-based formula.
Baroness Hollis of Heigham
My Lords, on the contrary, I would suggest to the noble Lord that there is plenty of research on how to bring in a needs-assessed formula, given that both devolved Administrations distribute their money down to local authorities on precisely that basis. Would the noble Lord therefore accept that Wales is indeed underfunded, that the Barnett formula effectively misspends and overspends by £4 billion and that a rectification of that would surely help the Minister to address the deficit?
Lord Sassoon
My Lords, what I said was that there was no consensus. Of course there is plenty of research but there is no consensus, and that is what is needed in this area.
Lord Myners
My Lords, the Minister brings considerable private sector expertise to his role, including at Union Bank of Switzerland. Can the noble Lord tell the House whether in his private sector experience he has ever come across a situation where companies say that if you do not spend the money, it will be taken away from you? What prudence does that encourage?
Lord Sassoon
My Lords, I believe that it was under the previous Government in 2006—the noble Lord will remember this better than me—that the health service overspent its budget and reserve by £182 million, and the previous Government stopped the EYF system. So I really do not think that we need lectures about me and my experience; it was the noble Lord’s Government who stopped it.
Somalia
(12 years, 6 months ago)
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Baroness Kinnock of Holyhead
To ask Her Majesty’s Government what action they are proposing through the European Union and other organisations following the Kenyan military offensive in Somalia.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, we are discussing the Kenyan military intervention in Somalia with many of our partners, including the EU and other organisations. The UK supports Kenyan action so long as it is undertaken in co-ordination with the Transitional Federal Government, and so long as it complies with international law. We will work with Kenya, the TFG, the EU and other organisations, such as the Intergovernmental Authority on Development, to ensure that any action does not impede humanitarian operations and is consolidated by stabilisation and the development of credible, accountable governance structures.
Baroness Kinnock of Holyhead
My Lords, I thank the Minister for his Answer. Will the Minister join me in regretting the under-reporting of what is a rapidly developing crisis that threatens to escalate into a major military conflict with consequences, as the Minister has said, that inflict further tragedy on the people of Somalia, many thousands of whom are starving and urgently need humanitarian aid? Is it not likely that this Kenyan incursion will perversely bolster support for al-Shabaab and that it will carry out vengeful reprisals in Kenya and beyond? When US drones based on a remote airfield in Ethiopia are flying over the area and the French navy has been active to the south of Kismayo, can the Minister give a clear assurance that Her Majesty’s Government do not intend to undertake a similar involvement and instead will work for a diplomatic rather than a military response?
Lord Howell of Guildford
I totally agree with the noble Baroness, Lady Kinnock, about under-reporting. It is extraordinary how little coverage there has been of a very serious situation affecting the Indian Ocean nations of the coast of east Africa. As for vengeful retaliation, I am afraid that revenge is one of the currencies of the area. The Kenyan military operation is of course a response to the invasions into Kenya by al-Shabaab and other forces, and it is important to note that it is an attempt undertaken with the support of the TFG in Mogadishu, to bring some order and control to the situation. We have to face the reality that revenge operations may take place but there has to be a firm attempt to bring order and a better kind of control, at least to the border area between Kenya and Somalia. As to the noble Baroness’s last question, we support the Kenyan action on the conditions that I have clearly made: that it is important to ensure full compliance and that it is a legal operation under Article 51 of the UN charter.
Lord Alton of Liverpool
My Lords, has the Minister seen the reports of 4 November from the United Nations that the number of Somali refugees fleeing war and drought to the Dadaab refugee complex in Kenya has increased to a staggering 463,000 people, making it the largest refugee camp in the world? Catastrophically, the numbers are growing daily. Has he also seen the reports from Médecins Sans Frontières that it can take up to 40 days for a food card to be issued to refugees, including children, which is leading to levels of malnutrition and illness growing considerably in the camp?
Lord Howell of Guildford
I have seen some but not all of the reports. We have also seen reports that there appears to be pressure to reject refugees and to run down the numbers in that location. We have urged the Kenyan authorities to continue allowing refugees in from Somalia. We recognise Kenya's huge generosity in hosting refugees, which it has done over many years, and we will continue to support these efforts in the coming months. We certainly urge Kenya not to forcibly return Somali refugees over the border. There are obviously major aspects of administration and provision, to which the noble Lord rightly alluded. We will continue to help with what is an enormous imposition and burden on Kenya at this difficult time.
Lord Avebury
My Lords, do I understand from what my noble friend said that the Government consider that Article 51 confers an unrestricted right of self-defence under the charter against aggression by a non-state actor? Or does my noble friend rather consider that if a resolution comes before the Security Council we should attempt to impose some restrictions on the extent to which Kenyan troops may occupy large areas of Somalia, and that they should be circumscribed in a similar manner to that which applied to the NATO invasion of Libya?
Lord Howell of Guildford
It has not yet come before the United Nations, and there is strong evidence at the United Nations that an interest in the matter is not encouraged. Indeed, there are indications that if a resolution were pressed it might lead to further validation in precisely the opposite direction to the one that the noble Lord indicated. Of course, Article 51 does not permit unrestricted self-defence; it requires a real sense of challenge to national security and that the necessary defence should be proportionate. That is very important. That is what the Kenyan authorities will need to establish to satisfy our criteria for support.
Lord Anderson of Swansea
My Lords, should not a key factor in our response be that a friendly Commonwealth country, Kenya, has been subject to intense provocation from the failed state on its borders, which has harmed its financial interests in terms of tourism as well as the major humanitarian matter? Is it not also a factor that the stability of the area might be increased if we were to encourage Commonwealth countries to move towards the recognition of the only stable part of Somalia; namely, Somaliland, the former British protectorate, which wants to join the Commonwealth?
Lord Howell of Guildford
The noble Lord is absolutely right about the challenge to Kenya. We all bear in mind the stories of the hideous kidnappings that have taken place, including the revolting story of the pirates or kidnappers who abducted a disabled lady and refused her drugs until she died. It is a repulsive story. He is absolutely right that there are grievous pressures on Kenya and indeed on all Indian Ocean and African states to do something. Co-operation between states—between Mogadishu and Nairobi in this case—must be a sensible starting point for action. As to the recognition of Somaliland, the problem is that this is not a country recognised by anybody in the international community. It would be a one-off development. We take the view that Somaliland should decide its own relationship with Somalia. We work very closely with it. Its administration is good, in contrast to that of the rest of Somalia, and we support it. However, we do not think that fracturing the area and recognising a single state individually would help matters. It might hinder them.
Procedure of the House: Seventh Select Committee Report
The Chairman of Committees
That the 7th Report from the Select Committee (HL Paper 206) be agreed to.
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, there are two Procedure Committee reports on the Order Paper today, and I sense that noble Lords may find the second of these more interesting than the first. But the seventh report also raises important matters, so I shall take a few moments to outline the committee’s recommendations.
As noble Lords will be aware, the Localism and Public Bodies Bills have now been through both Houses, and are in the final stages of ping-pong. Both are likely to be granted Royal Assent in the near future, and in the case of the Public Bodies Bill in particular, that may be quickly followed by the laying before Parliament of a number of important draft orders.
Clause 11 of the Public Bodies Bill, which was of course inserted in your Lordships’ House, sets out the process whereby Parliament will scrutinise these orders. A key role is played by any committee which is charged with reporting on any draft order. In particular, if this committee recommends that a particular draft order be subject to an enhanced affirmative procedure, involving a longer scrutiny period, and an opportunity to make further representations to the Minister, then that recommendation will have effect unless the whole House agrees by resolution to overturn the recommendation.
The effect of the report before the House today will be to charge the Merits of Statutory Instruments Committee with the tasks described in the Bill. This will involve some technical changes to the committee’s terms of reference, which are annexed to the report.
The provisions in the Localism Bill relate to orders akin to legislative reform orders, and our recommendation is that broadly the same procedure, of scrutiny by the Delegated Powers and Regulatory Reform Committee, should apply. Again, this will require some technical changes to the committee’s terms of reference.
I hope noble Lords will join me in paying tribute to the work of both committees affected by this report, and our confidence that they will undertake their new tasks efficiently and fairly.
I hope this explains the background to the seventh report, and I beg to move.
Procedure of the House: Eighth Select Committee Report
The Chairman of Committees
That this House takes note of the 8th Report from the Select Committee (HL Paper 213)
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, I beg to move that this House takes note of the 8th Report of the Procedure Committee.
This is an unusual Motion, since normally I would invite the House to agree the report, and the House’s agreement to the Motion would give effect to the committee’s recommendations. However, this report makes no recommendations; it contains a number of proposals, and each of these proposals is listed on today’s Order Paper as a separate Motion. In other words, the Motion that I am now speaking to is purely preparatory. It gives me an opportunity to describe the procedure for today’s business, but does not itself commit the House to anything. The substantive decisions will be taken when we come to the Motions on proposals 1 to 9.
The Procedure Committee’s report contains proposals arising out of the Report of the Leader’s Group on Working Practices, chaired by the noble Lord, Lord Goodlad. The report was commissioned by the Leader of the House, and debated fully in the House on 27 June. As the report was made to the Leader of the House, it is for him to decide how to go about implementing particular recommendations. The proposals on today’s Order Paper were brought before the Procedure Committee either by the Leader himself, or by the Clerk of the Parliaments at the Leader’s request.
The committee has decided that, rather than express a view on the individual proposals, we should simply present them to the House in a neutral form, so that the House may take a view on them. Members of the Procedure Committee themselves have different views, and the committee did not attempt to come to a single view on the merits of these proposals.
What we did do was to try to put the recommendations into a clear, workable form. In some cases, therefore, we agreed modifications to the original Leader’s Group proposals. However, the committee’s agreement to these modifications does not mean that the committee agreed the proposals themselves.
The Procedure Committee’s report covers 10 distinct areas, which the Leader invited us to consider. The Leader’s Group made many other recommendations, and my understanding is that the noble Lord the Leader of the House will, in due course, bring forward more proposals, in a similar format, either to the Procedure Committee or to other committees of the House, such as the Liaison Committee.
But this is a matter for the Leader, not for me, and I would like to emphasise my own neutrality as Chairman of Committees and Chairman of the Procedure Committee. As I have said, the committee did not agree or even attempt to reach agreement on the proposals before the House today. I therefore have no mandate from the committee to speak either for or against them. My only job is to assist the House in coming to decisions. I therefore propose simply to move each Motion formally as it is called. In the case where there is an amendment down, that amendment will then be called. Even where there are no amendments on the Order Paper, noble Lords may wish to speak to particular proposals. I shall do my best to assist the House where possible but I will not address the merits of any of these proposals. Similarly, I shall not prevent the House from coming to a decision on these Motions by begging leave to withdraw any of them. Today is a day for decisions, and I shall move each Motion when the time comes. I beg to move.
Procedure of the House (Proposal 1)
(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
16:26 - Division on Motion 1 - Ayes: 169 / Noes: 233 - Motion 1 disagreed.
Lord Wakeham
My Lords, I declare an interest in these matters. I am a member of the Procedure Committee, a former Leader of this House and the only living person who has been Leader both of this House and of another place—in fact, only the fifth person in British history who has ever held both jobs. I say all that because I think what I am going to say will be pretty disagreeable to a great many people in the House, and I thought that if I said it now, at least they could not accuse me of a lack of experience. My view is that proposal 1 is grossly unfair on the Lord Speaker, is bad for the House and would be the end of self-regulation.
First, the proposal is bad for the House. The working practices report seems to be based on a number of misconceptions. The Leader’s role is not to make decisions but to advise the House of what he thinks the will of the House is, and that expression of view can of course be challenged. The Leader, as is clear from the proposal before us, advises only which group or party he suggests the House may like to hear. That, of course, leaves a big gap regarding what happens, as is often the case, when two Peers from the same party rise to speak.
Lord Hughes of Woodside
A document was issued by the Government Whips Office saying that the Lord Speaker should call sides at Question Time, but the Order Paper talks about calling groups. Which is correct?
Lord Wakeham
I have no idea. I am speaking only on proposal 1; that is all I know about. I have had many years’ experience of whipping and I consider that, like other things, it is best done in private.
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, it might be convenient if I intervene at this point to assure the noble Lord, Lord Hughes, that the paper that we should be referring to is the Procedure Committee report and/or today’s Order Paper—and nothing that has been issued by anyone else.
Lord Wakeham
If I may resume, the first point that I was making was that the Leader of the House does not direct the House but offers advice. The second point is that the proposal before us today deals only with which party or group the Leader thinks should have the next turn; it does not deal with the question of two Peers rising from the same Benches.
The third point on this matter, and in my view the most crucial, is that the working party committee completely omitted what is very clear in both the Companion and Erskine May: that the Leader of the Opposition and the Convenor of the Crossbench Peers have a role to play in the order in the House. That is very important. In my view, in the circumstances when two people from the same party or two Cross-Benchers get up, it should be for the Leader of the Opposition, the Leader of the government party or the Convenor to advise the House which of the noble Lords he thinks the House should most like to hear. It is these failures to implement self-regulation over recent years that have got us into our present difficulty, and the sooner that we get back to proper self-regulation, the better. In my day, the Leaders of the opposition parties, the noble Lord, Lord Richard, who is not here, and the late Lord Jenkins of Hillhead, were both very helpful to the House over matters of order.
Secondly, this proposal is unfair on the Lord Speaker. When we set up the office of Lord Speaker, the House had the benefit of three separate Select Committees manned by some of our most experienced parliamentarians, taking evidence from virtually all the other experienced parliamentarians who were not members of the Select Committee. Those reports were very strong in saying that our unique system of self-regulation needed to be preserved and those conclusions from such an authoritative source should not be overthrown from a report which was based on misconceptions and did not in any case consider many of the issues, nor as far as I can see took any evidence from those with the appropriate experience.
The recommendations that the role of the Leader should be taken over by the Lord Speaker poses this problem for self-regulation: will the advice of the Lord Speaker be capable of challenge as is the advice of the Leader? It is not a comfortable thought. It would be disastrous if it were and the end of self-regulation if it were not. It would produce a regime for this House which is more restrictive than even the House of Commons which deals with these matters by points of order. So we need to think very carefully.
Secondly, we are asking the Lord Speaker to assume responsibilities not just from the Leader but also from the Leader of the Opposition and Convenor that are not even written down or clearly defined. There are also some very practical matters to be considered. I just wonder whether the lonely Woolsack is the right place for a Lord Speaker with these roles. When I was the Leader of the House sitting here, it was the nods and the winks from the Leaders of the other parties, plus, if I may say so, the mutterings of the Clerk, which were very valuable in making sure that I did not make mistakes. Even if we pass this Motion, the Lord Speaker stuck up there will not be in a position to administer it in any fair way. Therefore, my advice to the House is not to pass this Motion, and, secondly, to go back to self-regulation as it should be, because I do not believe that there are many people in this House who properly understand what self-regulation is.
Lord Geddes
My Lords, I did not expect to be intervening quite this early in this debate. When we last discussed the report by my noble friend Lord Goodlad, I used the expression that this recommendation was a “slippery slope”. I do not move away from that consideration. I intervene with a decade of experience as a Deputy Speaker and very much in support of my noble friend Lord Wakeham. There are practical problems in this proposal. I will mention just one or two of them.
The first is that from that position it is impossible to see the original Cross Benches. You simply do not have a view. Earlier this year, my noble friend Lord Colwyn had a brilliant suggestion for resolving that: he would use his dentistry experience and get an elevated Woolsack. That had considerable appeal. More seriously, of course your Lordships will know that in another place—and I use that expression advisedly—the Speaker sits in an elevated position, so he or she is able to see the House. Believe me, from the Woolsack that is not possible.
The only other point I would like to mention is that if this proposal were agreed to, the Lord Speaker or the Deputy Speaker would be able to call groups. However, as my noble friend Lord Wakeham said, if three members of Labour Party—I am not picking on the Labour Party, but use it merely as an illustration—were to rise simultaneously, they would all have to sit down again as the Lord Speaker rose, so there would be confusion to start with. Secondly, if none of those three or only one gives way, there would be a confrontational position and the Lord Speaker would be almost obliged to start naming names. That is not in this recommendation and I would vote very strongly against it. This means that the Leader of that party or the Leader of the House would then have to nominate or suggest the Peer concerned. In that respect, we will have gone round in a circle and will be back to self-determination. I do not approve of this proposal and I will certainly vote against it if it comes to a vote.
Lord Lloyd of Berwick
We considered this question at very great length when we had the Select Committee on the Speakership of the House six years ago. My view then was, and still is, that intervention at Question Time is a job for the Leader of the House as leader of the whole House and not as a member of the Government. If the Leader is not present, then it would be a job for the Deputy Leader of the House as deputy leader of the whole House. It was never my view that it was a job for the government Front Bench and therefore I do not understand the terms of Proposal 1, which refers to the job being,
“currently performed by the Leader of the House or Government front bench”.
That is not the job that we conferred on the Leader of the House six years ago. To insert “Government front bench” at that point in the proposal seems either to beg the question or, at any rate, to muddy the waters.
The question for the House is quite simply this: have the present Leader of the House and his predecessors on this side of the House impartially performed the function that they were then given during the past six years? I believe that they have. My only criticism, if I may say so, of the present Leader of the House is that when everybody is shouting together to get in, he does not intervene quickly enough. It is very important that he should intervene as quickly as he can when that situation arises. If in future he does intervene quickly, I see no possible advantage in transferring the job from the Leader of the whole House to the Speaker and I see many disadvantages, some of which have already been mentioned by the noble Lord, Lord Wakeham. Inevitably it will, in the end, lead to a loss of self-regulation.
Lord Grenfell
My Lords, I am not particularly happy with this proposal and never have been. My views have been somewhat confirmed by what the noble and learned Lord, Lord Lloyd of Berwick, has just said. However, I wish to take up the point made by the noble Lord, Lord Geddes, who has several times in recent times referred to the “slippery slope”. I simply do not buy this argument about the slippery slope for the following reason: in a properly self-regulated House, the House does not need to go anywhere it does not want to go. It has the power to say, “This far and no further”. Whatever changes might be made, they do not automatically mean that we are living in fear of a slide down a slippery slope because they can always be stopped.
My second point is that I am not very keen on trial periods. The trouble with a trial period is that the determination of whether that trial period has yielded positive or negative results is very difficult to judge and can be extremely contentious because we do not have clear criteria about how we judge whether they have been positive or negative. Making that determination could simply cause more problems for the House.
On the whole, I feel that the House works well enough with the system it has, provided, as the noble and learned Lord said, the Leader of the House and others on Front Benches take the responsibility necessary to make it work. If they do not, then you are inviting a tsunami of requests for some sort of reform which would probably in the end destroy the self-regulation of the House.
Baroness Boothroyd
My Lords, I intend to support the proposal before us this afternoon. I am in a great minority of one in believing that this House is self-regulating. I have not found that to be so. I have found it alien to me that a member of a political party who sits on the government Front Bench, whichever party may be in power, as a Minister of the Crown intervenes, interferes and determines which group in this House should be next to put the question. That is not a decision for a Minister of the Crown—a political animal, if I may put it like that—to take. To me that is for the judgment of an independent body, and that is the Lord Speaker, in whom we all have confidence. We would abide by the decisions of that Lord Speaker. I would therefore like to see this for a trial period, and I favour the proposition that is before us this afternoon.
Lord Higgins
My Lords, I also had the privilege of being on the Select Committee on the Speakership of the House, which, as has been pointed out, came out very strongly indeed against the proposal which is before us this afternoon.
I would just make one other point, which has been touched on earlier, and which I would have thought might possibly have appealed to the noble Baroness, Lady Boothroyd. In the House of Commons, the Clerks sit immediately in front of the Speaker and can lean backwards to give advice. It may be very often that the Speaker in the other place does not need that advice, but there are occasions which are highly technical and where such advice may be useful. It would be quite impossible in this House, as it is presently configured, for the Clerks to give advice to the Speaker without it being very apparent—it is not always apparent in the other place—that the advice has been given.
Baroness Quin
My Lords, I do not claim to have the unique experience of the noble Lord, Lord Wakeham, but having been a member in the other House for a number of years, like many people I think, I often compare and contrast the proceedings between both Houses. In many ways, the experience of being in the House of Lords is a very favourable one in that respect. However, for the reasons advanced by the noble Baroness, Lady Boothroyd, I feel that it is worth at least having a trial period where we have these matters judged by the independent voice of the Speaker.
On this occasion, I would actually like to consider going further down the “slippery slope”, although I normally like the self-regulation approach very much. These days, however, I have to say that Question Time—certainly for me and, I think, some others—can be quite stressful when one is competing so much with very active and well prepared Members on one’s own side, as well as trying to intervene in Questions in relation to other groups. In many ways, we should consider the Speaker as having the ability in the future to call Members because I think that it would create a fairer distribution. Not all of us have booming voices or towering physical presences, and sometimes it is not pleasant competing with one’s own side. Therefore I would like further consideration of this matter in the future.
Lord Rooker
My Lords, for two years while the noble Baroness, Lady Amos, was the Leader of the House, it was delegated to me to perform the functions of the Deputy Leader. I can assure the noble Lord, Lord Geddes, that the Lord Speaker can see more people around the House than the person sitting on the Front Bench can. There were a number of times when I had to be elbowed because I could not swivel my head to see other groups. That is a fact. On the other hand, the configuration of this House is not the same as that of the other place, where not only do the Clerks sit in front of the Speaker but the Speaker’s secretary usually stands alongside him giving tips if he does not spot something.
I take very much what the noble Baroness, Lady Boothroyd, said. As a government Minister, it is not appropriate to choose who asks questions of the Government. That is the fundamental principle we are dealing with here. That should not be the role of a government Minister, and we need to find a suitable way. I can understand those who do not want change. Those who did not want a Lord Speaker in the first place can see, in years to come, the neutral person in the Chair calling the supplementaries. That in itself would be an advantage. I do not have the statistics in front of me, but something like 50 per cent of the supplementaries are asked by 10 per cent of the Members. That is because they have the loudest voices. It is a bully boy’s tactic. We try to encourage people to come into this House in order to use their expertise, but when it comes to Question Time, they look at what happens and say, “I am not playing a role in this”. Doing it that way is not professional and there has to be another way. I think that this is just a small modernising step.
Baroness Sharples
My Lords, I have been in your Lordships’ House for 38 years and I should just like to say that I agree with the noble and learned Lord, Lord Lloyd. I think that the Leader of the House should be on his feet rather more quickly when two people are trying to ask a question.
Lord Campbell of Alloway
My Lords, I want to make a very short intervention because everything I have on my notes has been said by my noble friend Lord Wakeham and the noble Lord, Lord Grenfell, so really there is little more to say but this. The question is: are we to retain a self-regulating Chamber? If so, why dabble with the concept of opening a gateway that can never be closed? To what end and where is the justification for it?
Last night I read the official reports on this. There is not a shred of evidence to support proposal 1. Whatever was said about the Leader of the House and the Convenor of the Cross Benches, it forgot to mention the interests of the spiritual Benches. They are all the people who will decide what to do; they have the authority. You cannot land this job on a Speaker who does not have the authority and should never have it. I am not criticising any person or Speaker; I am talking about how the House should be run. It should be run by the arrangement of consultation that was referred to by my noble friend Lord Wakeham.
The last thing is that this is a question of crucial importance which also relates to other outside concepts that would have to be considered in legislation. It is quite wrong that we should now, without justification or evidence simply to please some concepts, do away with the maintenance of self-regulation of the House. It is the same sort of problem that we will have later on with retention of the ethos of the House.
Lord Grocott
My Lords, I know the concerns that are being expressed principally, although not exclusively, on the other side of the House. They basically imply that we are in danger of ending up with a situation like that of the Commons Speaker. I sympathise with those concerns. We do not want a Speaker in the sense of someone who has to adjudicate constantly on points of order and decide on balance whether difficult issues should be debated and so on. We do not want to go in that direction for all sorts of reasons which I think are well understood. However, I strongly support the proposal because I do not think there is any risk whatever of that happening under this change.
Indeed, I would offer as a kind of reassurance to those opposite that all these kinds of anxieties were expressed five years ago when the Speakership in its present form was established in this House. It was pretty vehemently opposed in all sorts of ways, while all sorts of forebodings were expressed as to what it would result in. I put it to the House that those forebodings have simply not been fulfilled. The Speakership has worked extremely well. I think that should be of some reassurance to those who feel that something serious, even cataclysmic, will happen if we support this proposal.
My main concern for wanting to be assured that this proposal will go through, and why I support it, is the issue that has not been mentioned. We are here to serve the public and part of that is for our procedures to be intelligible. Let us leave aside the term “self-regulation” at the moment—if there is regulation in any debate or at Question Time, it comes spasmodically from the government Front Bench. That is totally unsatisfactory for the reasons given by the noble Baroness, Lady Boothroyd, and for the practical reasons given by my good and noble friend Lord Rooker that you physically cannot see. In no Chamber anywhere on this planet or at any time in this planet’s history has the person responsible for order had half the audience sitting behind them. We are an absolute one-off on that, which is the position that we are in at the moment.
I simply put it to the House that we should do as every other representative organisation that I, or I guess anyone else in this Chamber, have ever had any experience of by having the person with a kind of responsibility for easing things along sitting in the centre and at the front—so far as there is a front here—of the audience, which would make it immediately intelligible to people watching in this Chamber or on television. It is such a minimal change. It does not advocate any new powers; it simply says that the power should be transferred from somewhere that—let us be blunt—does not operate that wonderfully at present. I defy anyone to say that it is a model in how it operates at present that others should follow. It is a small change in the right direction without any fear that has been expressed or any likelihood of being justified in the exercise. I urge the House to support this unanimous proposal from a committee on which I was very proud to serve. It was a very diligent committee that took evidence from everywhere across the House, and we should let this proposal go forward.
Lord Alderdice
My Lords, I suppose that all of us come to these matters very much with our own experience, so it is perhaps no great surprise that a very distinguished Leader of your Lordships’ House should take the view that things should stay with the Leader, and a very distinguished lady who was Speaker in another place should feel that the Speaker is the more appropriate person. I therefore confess to having a good deal of sympathy for what the noble Baroness said, as I found myself in that situation some time ago.
Of course, the way in which one conducts oneself as a Speaker is not identical in different Chambers. Whatever the sense of authority might be in the other place, in the place in which I served there was the idea that the Speaker should exercise authority over some of the Members of that place rather than facilitate and persuade them. I need only state that idea for noble Lords to understand my point. In fact, I took as my guide Speaker Lenthall, who when confronted by the monarch and asked to identify Members of the other place said that he had neither eyes to see nor lips to speak other than the House gave to him.
That is what we are talking about. We are not talking about an end of self-regulation because we are not talking about new powers for anybody. We are simply talking about an element of the responsibility that lies currently with the Leader of the House to be taken not by the Leader but by the Lord Speaker, who has been elected by noble Lords. It is not a change to the procedures, the authority or responsibilities. It is simply that a different person undertakes those responsibilities on behalf of the House and in sympathy with the House—not exercising authority over the House.
We should not think of this as an end of self-regulation or even a change to self-regulation. This is simply a question as to who is the most suitable person and in the most suitable place to undertake this. I have no criticism of my noble friend the Leader of the House, who conducts himself with great decorum and a good deal of subtlety and has helped us through the difficult expansion of our numbers and the pressure on the work of the House. I must say, however, that there are some points of difficulty in our work, particularly at Question Time.
Lord Alderdice
Never. However, I appreciate for many other noble Lords coming into the House from other places—many of them not political chambers—it is not a great encouragement to involve oneself in the business of questions. I take very seriously what the noble Lord, Lord Rooker, says about the number of people who engage at Question Time not being entirely satisfactory.
We might, by this very, very modest change, be able to send a signal to ourselves and others that we want to see a greater involvement of the House as a whole. I accept that there is no ideal place to sit in this Chamber to see everyone. The Lord Speaker would obviously have some difficulty seeing those who are in wheelchairs but, as has already been observed, the Leader of the House has considerable difficulty seeing those who sit behind him, so there is no ideal place.
However, some things have been adduced in the debate that really do not apply and are actually a protection against the slippery slope over which noble Lords have great anxiety. There is no need with this particular change for technical advice to be provided to the Lord Speaker. There are no points of order, and no complicated questions of procedure apply in this case. Therefore the experience that I had to have, as indeed do Speakers in other places, of having a Clerk either in front or beside to give the kind of technical advice that is not easily facilitated in your Lordships’ House, simply does not apply with this very modest change. All that is being asked for—
The Countess of Mar
What would the noble Lord suggest should happen if people from those Benches, his Benches or this Bench got up at the same time and would not sit down?
Lord Alderdice
I am very grateful indeed to the noble Countess for raising that question. I think my noble friend the former Leader of the House raised a very interesting question that I saw raised a few eyebrows. He indicated that that responsibility lay with the leaders of the groups. I am not sure that I have observed the leaders of the groups and the Convenor intervening in that way. That would be a move away from self-regulation of the Chamber as a whole. The Lord Speaker move that is being proposed would not change that question; it would simply change identification of the groups, not the sides of the House, whether we are talking about the Convenor of the Cross-Benchers, Labour, Conservatives, Liberal Democrats or indeed the Bench of Bishops.
However, if the suggestion made by my noble friend Lord Wakeham and pointed to by the noble Baroness were to be adopted and it was for the leaders of the various groups to indicate which of their colleagues should address the House, it would become extremely inappropriate for the Leader of the House to undertake that as the leader of the Conservatives. If it were to be taken in that way—and I am not sure that we actually are in that position—it would be even clearer that it should be the Lord Speaker who undertakes that. However, I find myself somewhat doubtful that that really is the way the House sees itself functioning. I think it wants to hold to a degree of self-regulation whereby the House as a whole calls for the Peer they wish to hear. That is really the preferable position for us to hold to, but there does seem to be a little uncertainty.
In conclusion—
Lord Alderdice
I am grateful for the indulgence of the House. In conclusion, this is the most modest of changes, which, as the noble Lord, Lord Grocott, says, would be much more comprehensible to those outside—and we hope that an increasing number is observing our procedures—and would in no way take away from the self-regulation of this House.
Lord Wright of Richmond
My Lords, in the light of the remarks of the noble Lord, Lord Rooker, I shall speak a little more softly than usual. I regard this proposal as a sad reflection of the decline in standards of courtesy, of self-regulation, of discipline and of brevity in this House, and I shall oppose it.
Lord Stoddart of Swindon
My Lords, I say to the noble Lord, Lord Grocott, that the Speaker we elected has virtually the same powers as the Lord Chancellor, who was summarily dismissed by Mr Blair. The role of the Speaker is no different from what went before. When this House was discussing whether we should have an elected Speaker, one of the reasons given in favour of having an elected Speaker was that there would be no difference from the previous situation. One of the arguments against it was the thin-end-of-the-wedge argument: that although there would be no initial plans, there would be moves later on to give the Speaker more powers. And so it has happened, because that is what is proposed today. I agree with the noble Lord, Lord Wakeham, in one respect: the House should not vote for this proposal today. I do not agree with him about handing power to party leaders, which really would be a retrograde step.
When I came here 28 years ago and saw how the House of Lords worked, I said, “It simply is not possible that a Chamber like this can regulate itself”, but I quickly found that it could, and did, regulate itself, and that its self-regulation was good for democracy —much better than in the House of Commons. I really enjoyed it. That was in a House not of 823 Members but of 1,183 Members. It should be easier for the House to regulate itself now than it was when there were a lot more Members.
One of our present problems—and there are problems; there is a lot of shouting, which ought not to go on—arises from the fact that there is a coalition Government and that the House is not sure whether the Liberal Democrat party should have a voice apart from the coalition. Frankly, that has to be settled. The only people who can settle it are the political parties and the usual channels. I wish they would set about it, and then we would know who was entitled, and when, to speak, particularly at Question Time.
My final point is a personal point. All we have heard about is the political parties and the Cross Benches. Although I sit among the Cross-Benchers, and they are very kind to accept me among them, I am an independent Labour Peer. I have not yet registered myself as a political party and I do not want to have to do so, but if parties are going to be called rather than individuals—the recommendation is that people should not be named—I shall be in some difficulty. I shall have to register myself as a political party, the Independent Labour Party, the previous one having become defunct quite a long time ago. For all those reasons, including the personal reason, I believe that the House should vote against this recommendation.
Baroness Hooper
My Lords, the House of Lords has a reputation for courtesy and good manners, as the noble Lord, Lord Wright, has already said. The basic system is very simple: speakers at Question Time and in debates rotate around the various political groups. I believe it is the responsibility of every Member of your Lordships’ House to understand this simple principle and to give way gracefully, as appropriate. That is what self-regulation means. It is also what good manners mean. I hope very much that your Lordships’ House will continue to operate in an effective and efficient manner without having to make this change.
Lord Martin of Springburn
My Lords, when I came here two years ago, I looked forward to asking questions, because as a Speaker I was not able to. Of course, in politics, many of us do not go and read a big book as to how things are done—we watch and we listen. The noble Lord, Lord Rooker, mentioned the bully boys and those who get in more than others. I watched and listened, and the person that seemed to get in a great deal more than others was the noble Baroness, Lady Gardner; and she could not be described as a bully boy. I said to myself that I would take a good example as a good thing and listened to the noble Baroness and how brief her questions were. I would be delighted if a Speaker or the Leader of the House was able to help an individual by saying that a particular individual should be called. However, the proposal is not to call an individual; it is to say which section of the House should have their turn, which is very different. To me, that is not going to help the person who is quiet-voiced and quiet-minded. If the proposal did say that an individual would be picked, I might have a different point of view.
It seems shambolic, but, in a way, this place seems to work at Question Time. There is a fairness about it, such that the quiet person often does get called. We talk about the Leader of the House being a Minister of the Crown, but the Leader of the House in the other place is a Minister of the Crown. The Leader of the House, although a Minister of the Crown and a member of a majority party, still has an obligation to look after the needs of the House and to be fair. I have seen that fairness demonstrated by the noble Lord, Lord Strathclyde, when he has said whose turn he thinks it is. Correct me if I am wrong, but that is the term that is used: “I think it is the turn of the Cross-Benchers”; “I think it is the turn of the Labour Party”. That narrows things down such that when it gets to the stage of two Labour Members arguing with one another, they should have the good sense to allow someone else to get in; or to say to themselves, “Last week, I got in and perhaps I will let a colleague do it this week”.
I very much enjoy being able to ask questions, including about apprentices. I remind the House that I came out of engineering. One of the loveliest things that my old foreman used to say was, “Michael, if it works, don’t fix it”. I would leave things as they are.
Lord Campbell-Savours
My Lords, I go back to the contributions of the noble Lords, Lord Wakeham, and the noble and learned Lord, Lord Lloyd of Berwick, because they raised two very important issues. They pointed to the need for the Front Bench to retain the role that it currently has. I will argue quite simply that it is impossible for the Front Bench to carry out that role. That has always been my position. In the correspondence that I had with about 500 Members four years ago, when 300 or so Members replied and gave their views on the matter, an overwhelming majority of those who responded said that they were in favour of changing the role of the Lord Speaker. It was clear that there was considerable concern about the role of the Front Bench—Labour was in government at the time—in carrying out that responsibility.
The noble Lord, Lord Wakeham, and the noble and learned Lord, Lord Lloyd of Berwick, both referred to the need to intervene earlier, but therein lies the problem, because the Front Bench cannot intervene earlier without appearing to be political.
Lord Campbell-Savours
The noble Lord opposite says, “Rubbish!”, but some of us, including the noble Baroness, Lady Boothroyd, watch what is happening on the government Front Bench during Question Time. The noble Baroness, Lady Anelay, very effectively seeks to have some influence on what is going on in the Chamber and often talks among her colleagues on the Front Bench as to who should be called. We are pointed to by Ministers on the government Front Bench, almost inviting us or identifying us to intervene during the course of the debate.
Lord Grenfell
This may be a hypothetical question, but it comes to my mind. When the noble Lord says that it should not be in the gift of the Leader of the House because of the political implications, would we now be granting those powers to the Woolsack if we still had a Lord Chancellor—because he was a political figure, too?
Lord Campbell-Savours
We do not have a Lord Chancellor; we now have an independent Lord Speaker. I am arguing that we should take that role away from the political and give it to the independent Chair of our proceedings, thereby enabling early intervention in a House which, during Question Time, is often unruly, and which has led to public criticism when people see adults on television standing screaming, shouting and bawling at each other across the Floor of the House. Anyone in this House who can claim that that is a dignified spectacle misunderstands what is expected of this House.
Lord Hamilton of Epsom
My Lords, I am absolutely staggered that any Member of this House who has served in the other place—or the House of Commons, I am pretty agnostic on what we call it—should be advocating greater authority for our Speaker. I fear that I do not remember the halcyon days of the noble Baroness, Lady Boothroyd. I remember her authority being constantly challenged on totally bogus points of order. You have only to pick up a Hansard from yesterday, which will be like any other Hansard from the House of Commons. It will show that after every Question Time, people leap to their feet with points of order which are not points of order. They are people who missed out on Questions—they have not managed to get in, so they ask their question anyway—or they bring up some constituency matter that happens to concern them. That is all completely bogus. The authority of the Speaker is constantly challenged in the House of Commons, and it will be challenged here if we give authority to our Lord Speaker. We do not want to go down that path; it is a very retrograde step. We should learn from the House of Commons and stay with a system that works very satisfactorily as it is.
Lord Brooke of Alverthorpe
My Lords, I am finding this a very strange debate indeed. I always thought that when we had a Leader’s Group, the Leader of the House was on the group and presented the report to the House. Then it went back to the Procedure Committee. The Procedure Committee then went through the report and then presented its report with recommendations which it unanimously backed. We knew precisely where we stood then and had very strong leadership. Times change, and the report has been presented today in a very different way, in a neutral fashion. I have been waiting to see who will speak on behalf of whom in defending the current position or advocating change. It looks as if we have a new style of neutrality, which we have not had before. In those circumstances—and I say this as someone who saw the House regulating itself well when I first came in, with civility, courtesy and discipline; and no doubt I am now as much part of it as anyone else—it has changed. We should recognise that we have changed, and move on. I have again heard criticism of the Leader today, saying that he does not intervene in the way that Leaders intervened in the past. I am moving then to say that I am going with the change, and I am hard pressed on this. I do not like the state that we have got ourselves into, and therefore if changes come, I have got to go with them—unless, of course, somebody will stand up firmly and say “No, we are stopping it. We are going back to what it was like before, and I am the individual who will ensure that that happens”. I do not know who that individual is in the House, and who is going to say it. But the question I pose to the Leader is: is he going to speak this afternoon?
Lord Dubs
My Lords, I have the feeling that our procedures work pretty well on the whole. However, the one area where they do not work well is at Question Time. All I would say is that a House that approaches matters with more dignity than the Commons becomes extremely undignified when we get to Question Time or questions on Statements, and I do not like that. Your Lordships will notice that everybody who has spoken is what I would call an old hand. I do not think that any of the newer Members have spoken. But I have talked to some of them, and they said that they do not like Question Time, and do not take part in it, because they feel that they do not get a fair share of it. They do not like having to outshout the bullies, and they feel that it is more dignified not to do that. That we should allow new Members to feel this way is a condemnation of our procedures.
I believe in the dignity of this House, and I do not believe that this change will make us become like the Commons. All it will do is transfer responsibilities from the Front Benches to our Speaker, who we voted for, and who we all respect. We are not going to challenge our Speaker if we do not agree with which groups she points to. We will accept her decision with good grace, as we accept with good grace what the Leader of the House does from the Front Bench when he points to one group or another.
There are, of course, other difficulties, which have been referred to already, and I would like us to go a bit further. It is all right to say which group or side is going to come next, but what about those who are not members of a group or of a side? What about UKIP or Independent Labour? How do they get a fair share? It is quite hard for them. In the Commons, the Speaker makes a point of ensuring that small minorities get a share, probably a bigger share, but there is no such safeguard here. Yes, we defer to the Bishops’ Bench; we do that because we do that, and we have always done it, and that is not a bad thing either. However, we have no tradition of knowing how to cope with UKIP or Independent Labour, or any individuals. Though the proposal does not go this far, I would have thought that the Lord Speaker, from the Woolsack, would be in a better position to be fair to all the Members of this House. This is a small but important step. It will add a bit to the dignity of the House and keep us as a self-regulating House.
Lord Ribeiro
My Lords, as a new Member who has not spoken, I would like to say a few words. Few of my friends would consider me a shrinking violet, but there is no question that, for new Members, speaking in this House is a steep learning curve. I have been fortunate to have two or three Questions at Question Time. One thing that is very surprising is that the Member who puts the Question often has less time to ask their question than do those who ask questions afterwards. Brevity is the key. It has been emphasised that some of us are able to keep our questions fairly brief. Self-regulation is not just about the Leader of the House determining who speaks and when; it is about the Members themselves recognising that they have 30 minutes in which to deal with four Questions, and that that can be done satisfactorily only if people keep to time and allow others to have a say as well. I do not think that there is a problem with the system as it stands. It is for us to look at how we behave.
Lord Kakkar
My Lords, I have had the privilege of sitting in your Lordships' House for only 18 months but I have received the warmest of welcomes, particularly at Oral Questions. I have also learnt three unique characteristics of your Lordships' House. The first is that all noble Lords are equal. There is no stronger manifestation of that characteristic than at Question Time, when one has the privilege to be heard because it is the will of your Lordships that one should be heard. Secondly, this is a self-regulating Chamber and noble Lords hear from whom they want to hear in the context of the Question being discussed and the expertise that is present in the Chamber at the time of the discussion. Finally, I have learnt that there is a very important constitutional role for the Leader of the House which goes far beyond his responsibility as a member of the Cabinet and far beyond his responsibility as leader of the governing party in this House—the obligation to every Member of your Lordships’ House to serve their interests and to ensure that the will of the House is properly communicated and understood. To divide the Leader of the House from the specific responsibilities that we discussed at Oral Questions today runs the risk of removing this overall obligation which the Leader of the House has to all noble Lords.
Baroness Butler-Sloss
My Lords, after the comments of the noble Lord, Lord Dubs, I am very tempted to say—as yet another fairly recent Member of this House, having joined just over five years ago—that I am not entirely happy with the way in which Question Time is seen by the public. We do not behave as well as we should. However, I do not think that the current proposal would make it much better, for all the reasons that have been given. It seems to me that two things should happen. First, I think that the Leader of the House or the Chief Whip should occasionally make it clear whose turn he or she thinks it is. That is not always as clear as it might be. Secondly, it is time that we, as Members of this House, used self-regulation to mean self-regulation of each individual—we should behave better. We should sit down when other people are standing and hope that we will have a chance, but if we do not get a chance to speak, we should hope that we will have a chance next week. That is one of the reasons why I do not speak very often at Question Time. I feel that others have something to say and I want to speak only when I really have something to say. If we are proud of self-regulation, we have an obligation to regulate ourselves.
Lord Lucas
My Lords, I am for self-regulation but I think that the usual channels could help us a little. We could be clearer, as the noble Lord, Lord Stoddart of Swindon, said, about whose turn it is and what the rules are. I think that there is a blockage in the usual channels which should be cleared. It creates conflicts every Question Time, which is unnecessary. I also think that the leaders of individual parties should be much better at disciplining their own members—either those who speak too frequently and stop others speaking or those who speak at too great a length. I get the impression that there is no effective discipline in that respect. It would help if one knew that someone who sins will be dealt with afterwards.
The Countess of Mar
I was very impressed with what my noble friend Lord Wright had to say and with what the noble Baroness, Lady Hooper, said about courtesy and observing other people. I think that this is a temporary problem. The noble Lord, Lord Stoddart, said that we are a smaller House than we used to be, but in fact an extra 100 people sit in the House each day, so there is more pressure on the House. We have had a sudden influx of people who do not understand the rules. I think that they are now bedding down, so the proposal is unnecessary, if not premature.
Lord Palmer
My Lords, I have a quick question of clarification. If this Motion is agreed, are we going to adopt the idea of the noble Lord, Lord Colwyn, to actually raise the Woolsack? As the noble Lord, Lord Geddes, mentioned, you cannot physically see these Benches from the Woolsack. I would be grateful for the Leader’s response.
Lord Pearson of Rannoch
I should thank my noble friend Lord Stoddart—if I may refer to him as that—and the noble Lord, Lord Dubs, for what they said about the minority parties and independents in your Lordships’ House. I would comment further, however, by saying to the noble Lord, Lord Campbell-Savours, and others who feel that we behave extremely badly at Question Time, and that this does not do us any good with the public, that I think that the public see a substantial difference between Questions in your Lordships’ House and Questions, particularly Prime Minister’s Questions, in the House of Commons. The members of the public who I talk to always say how well behaved your Lordships’ House is in comparison to the other place.
Lord Campbell-Savours
Perhaps I may just refer to this myth about the distinction between the two Houses and ask the noble Lord whether he appreciates that in the Commons people do not stand and bawl at each other across the Floor of the House.
Lord Campbell-Savours
No, they do not. I would suggest that Members go to the Public Gallery in the Commons and see what goes on there. This is one of the only Houses in the world where Members bawl at each other to be heard on the Floor of the House.
Lord Pearson of Rannoch
I simply cannot agree with the noble Lord. As someone who tries to get in on Questions quite a lot—only because I am interested in a subject which is quite topical at the moment—I would have thought that when noble Lords get up who have not spoken and do not speak very much, the courtesy in your Lordships’ House is definitely there, to hear the new person, to give them a chance and so on. So I think that this aspect of our bad behaviour—and I speak also as someone who gives way a lot, and I am very happy to go on doing it—is exaggerated.
I am not sure that this Motion on the Order Paper really helps us. As I understand it, the Lord Speaker would simply choose a group, whether the Conservatives, the Cross Benches, Labour or the Bishops—though we normally give way to Bishops in any case. Time would be taken because it would go to the leader of the chosen group to decide who was going to speak. I am not sure that, as drafted, this takes us forward at all.
Finally, I would ask the Leader of the House, if he is going to speak, if he could clarify a doubt which the noble Lord, Lord Stoddart, mentioned, and which is in the minds of many of us when we decide whether we are trying to get in at Question Time. Are the Government one group, and does each speaker from the Government count as a question asked by the Government, or are we in fact dealing with the Liberal Democrat party and the Conservative Party, and therefore do they each get a shot at Questions as the groups revolve around the Chamber?
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, what an extraordinary debate. I have never seen the House so impeccably well behaved, gracefully giving way to each other without being asked and without any intervention from me or anybody else. If it were like this all the time we would never need to have this debate.
This debate has been in gestation for some years, since the noble and learned Lord, Lord Lloyd of Berwick, published his initial report, which settled the position for two or three years. It has become an increasingly hot topic and I very much welcome the debate that we have had today and the report of the Leader’s Group. It is important that we have this discussion.
I ought to lay out my cards at the very start of this debate. I do not favour the proposal. If it is called to a vote, and I am sure that it will be, I shall vote against it. Why? I think that the Leader’s Group sought to find a compromise, and in that it may well have created the seeds of doubt. I do not think that it will work. Simply moving the powers that I hold to the Woolsack—and many others have made this point—will not make things any better. If there is a failure in the current way that I interpret the rules, I am not convinced that the Speaker will do it any better. Whether or not we want to change the role of the Chair, it is not the proposal that we have before us today.
Secondly, it is the start of the end of self-regulation. I very much pray in aid the brief speeches of the noble Lord, Lord Wright of Richmond, who said that we should pause and reflect before we let go of the ancient way of self-regulation that has served the interests of the House for so long.
Thirdly, as a result of that, it will lead us inexorably to the Lord Speaker being given the power of calling individual Peers, which in turn will lead us to the system of the House of Commons. I have never been a Member of the House of Commons. I have been to see it from our own Peers’ Gallery and I have watched it on television. Presumably, the House of Commons has its own ways of behaviour, customs and traditions. However, I wonder whether any fair-minded, reasonable citizen who sat in our Gallery and then that of the House of Commons would really believe that the House of Commons is better behaved. I think not.
A number of Peers, including the noble and learned Lord, Lord Lloyd, and my noble friend Lady Sharples, said that part of the problem was that I am not up on my feet quickly enough to bring order to the House. I will respond to that. I do not see my role as that of a Speaker bringing order. As others, including the noble Lord, Lord Martin of Springburn, said, I see my role very much as trying to guide the will of the House to put itself back in order. However, if the proposal is not agreed and the powers are retained by the Leader, I would not mind having my own little experiment of leaping to my feet with greater alacrity and seeking to guide the House more urgently.
The second criticism of my role was made by the noble Baroness, Lady Boothroyd, the noble Lords, Lord Grocott and Lord Campbell-Savours, and others. They said that my role is essentially political as a Minister of the Crown and that these powers should not be vested in someone who is so clearly a politician. I understand the impeccable logic of that, but I still think that it is completely wrong. Ministers in all sorts of roles also have to be able to carry out an independent role of leadership, which is what I very much try to do as Leader of the whole House. I hope that the House can recognise when I am being nakedly political and also when I am representing the interests of the whole House, which is what I try to do at Question Time.
A number of questions were asked about my interpretation of the rules. The usual channels, through the Chief Whips, have decided and agreed that the Liberal Democrats and the Conservative Party at Question Time are treated as one group. Therefore, we take it in turns. That gives an advantage—contrary to what the noble Lord, Lord Rooker, might believe—to the party of opposition. It is right that the party of opposition should have the lion's share of Question Time: after all, it is trying to scrutinise the Government. For instance, today there were 24 supplementary questions, of which 15 came from the Labour Party. I am bound to say that if this power were moved to the independence of the Woolsack and the Lord Speaker, I am not so sure that that arrangement would be maintained. One has only to listen to the speech of my noble friend Lord Alderdice to see that.
It is not so much a question of, “If it ain’t broke, don't fix it”; there is always room for improvement and for doing things better. In the first year of coalition, we had a substantial increase—more than 100—in the number of Peers in the House. There was a difficult sense of assimilation. There were certainly Members of another place, on all sides of the House, who thought that they had arrived in a House of Commons without any rules. That was not the case; it is not the case. As the first anniversary kicked by there was a sense of settling down in the House. I have noticed that the House seems to be happier in its skin, with new Peers and the coalition working together. The noble Countess, Lady Mar, was quite right in pointing that out.
The most difficult decision at Question Time is what to do, if I can put it as politely as possible, with the Bishops and the noble Lords, Lord Pearson and Lord Stoddart, who clearly represent a view—not the Bishops; I must not confuse the Bishops with the noble Lords—that is live outside this House. As an act of great courtesy, and rightly, the House always gives way to the Bishops. I think that we should maintain that, but I am not sure that this proposal allows for that.
I have learnt a lot from listening to this debate. I think that we have had a very good opportunity to air all the grievances and potential problems, and, I hope, also the benefits of the system that we already have.
The Chairman of Committees
My Lords, if no other noble Lord wishes to intervene, I beg to move that Motion 1 be agreed to.
Procedure of the House (Proposal 2)
The Chairman of Committees
To move to resolve that the procedure adopted in early 2010, whereby Secretaries of State sitting in the House should answer three oral questions, on one Thursday each month, directed to them in their ministerial capacity, should be made permanent, with a view to its revival as appropriate.
Amendment to the Motion
Lord Williamson of Horton
As an amendment to the above Motion, at end insert “, except that the time allocated for the three oral questions should be up to 20 minutes in total instead of up to 15 minutes”.
Lord Williamson of Horton
My Lords, this amendment was originally put forward by the noble Lord, Lord Low of Dalston, but as he is unable to be present today, I have put it forward in my name. I should like first to stress that I am strongly in favour of the proposal on the Order Paper today to make permanent an arrangement by which Secretaries of State answer questions in this House. The only issue raised by my amendment is whether 15 minutes are sufficient or whether the time should be increased to 20 minutes. We are speaking about a maximum time limit. We have plenty of experience in the House, for example, on the time limit for questions following a public Statement, when sometimes the full time is not used, but more frequently, questions are cut off by the time limit. In the case of a Secretary of State’s questions now being proposed, some part of the time would normally be taken by a question from the opposition Front Bench, and there would probably be a question from the Liberal Democrats, thus the time for Back-Bench questions would be very short indeed. I hope therefore that the House will look favourably on another five minutes, a fairly modest proposal in my view, so that a Secretary of State could answer questions for a maximum of 20 minutes, not 15 minutes, as was the case in early 2010. I beg to move.
Lord Laming
My Lords, this is a very modest amendment, but an important one for the reasons set out by my noble friend Lord Williamson. I hope very much that the House will endorse it without a Division.
Lord Goodhart
My Lords, we should not be taking this issue at this time because we have no Secretary of State. There is no real probability that there will be a Secretary of State in this House before the next general election. It seems to me that it would make more sense to leave this for what is likely to be some years, then bring it back and consider it in the light of events as they then are.
Lord Tordoff
My Lords, I disagree with my noble friend. This is an appropriate time because we do not have a Secretary of State. I have one other thing to add: I totally support the Motion and the amendment, but I wonder whether it should not be 20 minutes rather than 15 minutes. We can perhaps come back to that in the next Parliament.
Procedure of the House (Proposal 3)
The Chairman of Committees
To resolve that Members should read out the text of oral questions, using the formula “My Lords, I beg leave to ask Her Majesty’s Government” followed by the text of the question; and that there should be a mandatory word limit of 25 words (excluding the introductory formula) for all oral questions.
Lady Saltoun of Abernethy
This is the most ridiculous idea that I have ever heard in my life. As far as I can make out, it is put forward as a time-saver: how on earth is it going to be quicker to say “My Lords, I beg leave to ask Her Majesty’s Government” and then another 25 words instead of saying “My Lords, I beg leave to ask the question standing in my name on the Order Paper”? It just does not make sense. Is it proposed, then, that the questions will not be printed on a list—or what?
Lord Alderdice
My Lords, the noble Lady must have had a sheltered existence if this is the most ridiculous thing that she has ever heard. I must confess that I have heard a good deal more ridiculous things. My understanding is that this is not in order to be more efficient or effective in regard to time, but to convey to those outside of the House what they do not have available—which is the Order Paper. Rather than their being uncertain of the purpose of the Question, they would be clear about it. I accept entirely what the noble Lady has said—that it would take up a little more time—but, if it contributes to making our proceedings more comprehensible to those who are watching on the television or by internet, it is a reasonable enough proposition. The idea that the number of words might be restricted is a good one as well.
The Earl of Erroll
My Lords, I agree with the noble Lord and I confirm that that is the purpose. As everything is now televised, people must understand what is going on. We could get the time back by saying that the Minister may stand up when someone has been speaking and trying to ask a supplementary for 30 seconds and start the reply at that point. Quite simply, if one cannot get the question out in 30 seconds it is just bad luck.
Lord Higgins
My Lords, I believe that the present arrangement works extremely well. As far as I can see, this will actually slow down the proceedings, and, to try to get some of the time back, imposes a limit on the length of Questions to 25 words. One can see a number of Questions on the Order Paper now which are over 25 words and are by no means excessively long. I see no reason whatever to change the existing arrangement.
Lord Cormack
My Lords, I agree very much with my noble friend, but there is one thing that we could do—and I hesitate to mention this. There is one practice in the Commons that speeds it up: that the Member asking a Question gets up and says “Number One”, “Number Two” or “Number Three” or whatever. As the Question is printed on the Order Paper; as you can put texts on the television that viewers can read; and as every Member of your Lordships’ House can read and has an Order Paper, that is the way one could speed things up. However, in my view there is absolutely no justification for this particular suggestion.
Lord Empey
My Lords, I support the noble Lord, Lord Cormack. Clearly, we want to make the House intelligible to as many people as possible. However, given that we have Questions one month in advance on our green sheet and, on the day, we get two sheets with the Questions on, nobody should be in any doubt as to what Question we are going to be asking. Given that the Questions are well known in advance, the solution is to have the text on the television. That would achieve the two things that we want to achieve: first, to better inform the public; and, secondly, not to do the very opposite of what we are trying to do in many of these Motions, which is to save time. This goes completely contrary to the thrust of them.
Baroness Royall of Blaisdon
My Lords, I am slightly agnostic about this. If I have to come down somewhere, I come down on the status quo. However, I am attracted to the limit of 25 words. We need more brevity in this House. I take myself to task, following on from the comments of the noble Lord, Lord Lucas, earlier, that my colleagues and I on the Front Bench do not take ourselves and other noble Lords on our Back Benches to task when they ask long supplementary questions. I do not say that we must have it in writing, but as a consequence of this debate we all need to be more mindful about the length of supplementaries, both questions and answers. I hope that that is one lesson we will have learnt from today.
Lord Higgins
My Lords, before the noble Baroness sits down, as I understand it, the limit is on the length of the Question on the Order Paper. It is not on the length of supplementary questions.
Baroness Royall of Blaisdon
I understand that, but I was trying to draw a comparison by saying that it is not so much that we need a limit on the original Question, but that we need to be more self-regulatory in putting a limit on the length of supplementaries.
Baroness Kramer
My Lords, perhaps I may pick up on the point made by the noble Baroness, Lady Royall. I, too, am agnostic about the particular form, but the example that 25 words would make is perhaps one that the House would take on board. A short question takes a lot of hard work to frame but is probably the greatest courtesy that any noble Lord can pay to the House. The more questions we have on any particular topic, the better the range of issues around that topic is covered. I know that frequently only five supplementary questions are put, whereas I must say, coming from the Commons, I would have thought that closer to 10 supplementary questions are put in an equivalent time. That would be appropriate. We should somehow absorb the self-discipline of not believing that it is necessary to lay out the full background to a question, and then because our questions are so important, to ensure that two or three are wrapped into what is meant to be one supplementary question. But that is going to require the Leader of the House, the Leaders of other parties and perhaps the Members of longest standing who have real influence in this House actually to enforce the process. Perhaps then newer Members, who very rarely get to open their mouths in this place, will have an opportunity genuinely to contribute where they have real expertise.
Lord Campbell-Savours
My Lords, the problem with that as a proposition is that it does not work. We have been arguing for that for the past 10 years. I can think of innumerable occasions where Members have sought to try to stop people asking long supplementary questions, but I can guarantee the House that tomorrow it will happen again, and that it will happen on Statements. It is because we simply do not enforce the rules of the House. It is a problem that this House will ultimately have to address.
Lord Butler of Brockwell
My Lords, I want simply to ask whether it is in the House’s power to arrange that the Question is printed on the television screen. That was exactly 25 words.
Lord Roberts of Llandudno
My Lords, the time allowed for each Question is about seven minutes. When we had a smaller House, most of those who wanted to ask a question were able to do so, but now there are so many people who cannot get in on a Question. They might not always have something valuable to contribute, but sometimes they do. Is it not time, perhaps not today but very soon, that we sought to adjust the length of the Questions by allowing eight or nine minutes for each of them rather than seven minutes?
Lord Lucas
My Lords, since we cannot even squeeze the name of the person speaking in Grand Committee onto the television screen, I doubt if we can fit 25 words on it.
Lord Harris of Haringey
My Lords, a simple arrangement would be to have a surtitle over the Throne so that anyone could look at it up there.
Lord Geddes
My Lords, I am all for paucity of words and the concept of limiting supplementaries to 25 words is thoroughly admirable, but that is not the point of this proposal. In that respect, I think that noble Lady, Lady Saltoun, has done the House a good service with her initial intervention. I certainly am not in favour of wasting the House’s time even further.
Lord Jenkin of Roding
My Lords, I have a confession to make. I do not spend a great deal of time watching the Parliament channel or listen to “Yesterday in Parliament” and I do not know the answer to the question. Do those channels ever print the Question so that people can see it? It seems to me that the point made by the noble Lord, Lord Butler, is absolutely right. I am not concerned that the Questions should be on these screens because we can always get hold of the Order Paper ourselves. Indeed, that is one of the first things most noble Lords do when they come into the House. It is a question of whether people who are watching the proceedings know what the Question is. I do not want to have the Question read out in the House but we should follow this up through the Information Committee or whatever to make sure that the television channels print the Questions so that many more of members of the public who watch will know what we are talking about.
The Earl of Erroll
To help the noble Lord, it is not just television as there is also YouTube and other internet channels. You cannot do anything about that and we will probably be putting out more information that is much more accessible to the general public.
The Countess of Mar
My Lords, if people are interested in the proceedings of the House, they have only to go on to the parliamentary website and look at the Business of the House. They can then see all the Questions listed for a month ahead.
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, I do not know whether noble Lords think that we should maybe come to a conclusion on this proposal. Before asking for the Question to be put, I will say that I will take back the question of the noble Lord, Lord Butler, on how much or what is televised. Otherwise, I move that proposal 3 be agreed to.
Procedure of the House (Proposal 4)
The Chairman of Committees
To resolve that the following new guidance be added to the Companion to the Standing Orders: “Members should not take up the time of the House during question time by making trivial declarations of non-financial and non-registrable interests. Questioners should not thank the Government for its answers, nor ministers thank questioners for their questions.”
Baroness Noakes
My Lords, I have one point to raise in connection with this, which comes back to courtesy in the House and which ran through the debates on the first proposal. If Members of this House were more courteous to each other, we would not have the problems that are perceived during Question Time. Often in Question Time, Ministers do not give Answers that merit any thanks whatever, but occasionally they give extremely helpful Answers. It seems to me that it would be improper that the Companion should debar the questioner from thanking the Minister for a useful Answer. While I am all in favour of stopping the ritual of thanking for Questions and Answers, the way in which this has now been expressed is wrong because it debars Members of the House from normal courtesy.
Baroness Farrington of Ribbleton
My Lords, I will make just a brief observation. Occasionally, the length of the reply does not assist the person who asked the Question but is an attempt to prevent their answering it.
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, as your Lordships know, I am completely neutral on these proposals and have no views. I therefore put the Question. I beg to move that proposal 4 be agreed to.
The Deputy Speaker (Lord Colwyn)
I wonder whether it would help the House if I read out the Motion. This Motion invites the House to insert new guidance in the Companion with a view to promoting briefer interventions from Members and Ministers during Question Time.
Procedure of the House (Proposal 5)
(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chairman of Committees
To resolve that where a statement of exceptional length has been made in full to the House of Commons and made available in the Printed Paper Office before it is due to be repeated in this House, the Minister in this House may (with the agreement of the usual channels) draw the attention of the House to the statement made earlier without repeating it; and proceed immediately to the period for exchanges with the Opposition front benches;
That the text of the statement should be reproduced in the Official Report;
That the guidance in the Companion to the Standing Orders on backbench contributions on oral statements should be amended, to indicate that “ministerial statements are made for the information of the House, and although brief questions from all quarters of the House are allowed, statements should not be made the occasion for an immediate debate.”
Lord Pearson of Rannoch
My Lords, I am afraid that this proposal does not really make sense in practice. When a Statement is coming, it is normal practice that the Printed Paper Office does not release it until the Minister or Prime Minister in the Commons has sat down after making it. Under pressure of business in your Lordships’ House, the time between the Minister sitting down in the Commons and a Minister getting up here to repeat the Statement is often extremely limited.
Many of your Lordships who want to contribute by asking questions may be in other parts of the House and do not know when the Statement is coming—it is “at a convenient time” after whatever piece of business has been decided. By the time one gets here and gets into the Printed Paper Office to get hold of the Statement to read it, the Minister is very often several paragraphs down the track. It is rather useful to have the Statement from the Printed Paper Office to catch up with what the Minister has said that one has missed because one did not know it was coming. The monitors over at your Lordships’ House no longer ring the bell when a new piece of business is there, so if you are working in the Royal Gallery or wherever you happen to be, you have to keep a beady eye on the screen to know when the Statement is coming.
I do not feel that this proposal really works. I cannot see why yet again we cannot go on with the existing position. It cannot be taken for granted that, if one wants to contribute to the debate, one will have been able to have absorbed the Statement.
Lord Brooke of Sutton Mandeville
My Lords, I take slight issue with the noble Lord, Lord Pearson of Rannoch. We had this problem fairly early after the coalition was formed. I raised the question on one occasion when the Leader was making a Statement that was not available to us because it had not finished in the Commons. The Leader was gracious enough to say that the rules of engagement in the Printed Paper Office should be altered and that the Statement should always be available as soon as the Minister got up in this House. I agree that the Printed Paper Office is not always consistent in its reactions. I had no difficulty in persuading it that these instructions had been given and the paper should in fact be released.
Lord Campbell-Savours
My Lords, the Motion actually reads,
“‘may’ (with the agreement of the usual channels)”.
One must assume that the usual channels would have this matter in mind when deciding. Therefore I do not see any problem at all.
Lord Higgins
My Lords, I understand very well the case against reading out extremely long Statements. None the less, I believe that the repetition of Statements in this House is very important because very often they get much more detailed expert scrutiny than in the other place.
As far as television is concerned, it is rather regrettable. As far as I can establish they televise the original Statement in the Commons but virtually never show the Statement being repeated in this House. That is perhaps a point which ought to be taken on board.
Having said that, I think that there is also an important matter of timing—if it is an extremely long Statement, which is then going to be in the Printed Paper Office, one is going to need some time to read and digest it before the Statement is then bounced suddenly into this Chamber. At the very least, while one would not necessarily move a manuscript amendment, those dealing with this discretionary practice should certainly allow at least an hour and a half—and I would have thought two hours—between the Statement being available in the Printed Paper Office and it being taken on the Floor of the House.
Baroness Kramer
My Lords, surely the most important work we do when a Statement is put before this House is to question it and scrutinise it. Making sure there is adequate time for that and that a full range of views is aired is absolutely central to our responsibility.
I have perhaps a personal prejudice. I find that speeches that are read out are extremely difficult to listen to and a second-hand speech is, frankly, even harder to listen to because no one can put any life into it. I am not sure that listening to the speech gets me a lot further in terms of understanding. Perhaps that also applies to other noble Lords in this House. If we need a time delay to make sure that everyone has had an opportunity to actually do the reading, surely that is something that can be organised. It seems to me that the precious time we have should be spent on scrutiny rather than on a second-hand regurgitation of a speech that is sitting on paper in front of us.
Lord Pearson of Rannoch
My Lords, further to what I said earlier, I accept what the noble Baroness has said if there were to be sufficient time to really scrutinise the Statement. Without boring your Lordships’ House too much, in the case of Statements on European Council meetings, one also has to read the European Council conclusions and compare them with the Statement because they are often very different. We need at least an hour and a half for that.
On the matter of saving time, I of course accept that our questions should be briefer, but perhaps this is another opportunity to say that if the answers from the government Front Bench could also be briefer, we would all save a lot of time. That goes for Oral Questions, too.
Baroness Symons of Vernham Dean
My Lords, I was a Minister in your Lordships' House for eight years, serving in both the Foreign Office and Ministry of Defence. I know from my experience as a Lords Minister that you have to listen very carefully to what your Secretary of State is saying in another place, because Statements very often get changed from the last time you saw them in your department. It is very difficult for the usual channels to be able to anticipate that. Since we are talking of courtesy in this House, I think that it is courteous for this House to have the same opportunity as another place to listen to a full Statement. If we are talking about the importance of clarity for members of the public, it seems to me quite extraordinary to suggest that, on the one hand, we should have questions in full but that, on the other, that we do not need to have Statements in full. For members of public watching on their televisions, listening on the radio and sitting in the Public Gallery not to have heard a Statement in this House seems to lack the clarity that we have been so keen on elsewhere. For those three reasons, I think that this is a misguided proposal to put before your Lordships.
Lord Butler of Brockwell
My Lords, the proposal refers to exceptional circumstances and I should like to remind the House of one. I remember a public expenditure Statement lasting an hour and a quarter being made in the House of Commons and then being repeated in full in this House on the following day, when everybody had had the opportunity not only to read the Statement but to read everything about it in the newspapers. I suggest that that is the sort of circumstance in which the time of the House should not be taken in repeating a whole Statement.
The Countess of Mar
My Lords, the Leader of the House made clear what happens at Question Time as to which blocs there were. My understanding is that, at Statements, Liberal Democrats are a separate bloc from the Tories, the Labour Party and everybody else. Can he make the position clear?
Lord Strathclyde
My Lords, I think that the Leader’s Group is trying to be helpful, in part because of the example that the noble Lord, Lord Butler, laid out. The proposal is not for the generality of Statements; it is for the most exceptional circumstances; there is the safeguard of the usual channels. The example that the noble Lord gave, of last year’s Autumn Statement, when it was taken on the second day, is precisely the one that we all had in mind. To spend an hour and a half on the Minister reading out the Statement was, I think, a bit much for all of us. The proposal is not designed to deal with most Statements.
On some of what the noble Countess said about blocs during Statements, I am not entirely sure what the situation is. Perhaps I could discuss it with the Chief Whip and the opposition Chief Whip. I think that there is a slightly different system at Statements, with the Liberal Democrats, Conservatives, Labour, Cross Benches and anybody else taken more in rotation than at Question Time.
Baroness Royall of Blaisdon
My Lords, before the Leader sits down, perhaps I may ask him about the important point raised by the noble Lord, Lord Brooke, which is that most Statements are currently made available in our Printed Paper Office when the Minister sits down in the House of Commons. It would be extremely helpful if they were made available when the Minister stood up in the House of Commons.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I think so, too. I shall see whether we can make this happen. There may be some extremely good, logical reason why the Statement is not made available earlier, but if it can be changed then I think that it should.
Lord Geddes
My Lords, I should like to add one point that I do not think has been mentioned. The final words of the proposal are almost the most important. They say that,
“statements should not be made the occasion for an immediate debate”.
If this proposal is carried, I hope that the House will bear that in mind.
Motion agreed.
Procedure of the House (Proposal 6)
The Chairman of Committees
To resolve that, with effect from the start of the 2012–13 session of Parliament:
Members be limited to one Question for Short Debate in House of Lords Business at any one time;
Each Question for Short Debate should indicate the date on which it was tabled;
After six months it should be removed from the list;
The guidance in the Companion to the Standing Orders on the wording of Questions for Short Debate should be as follows: “Questions for short debate last for a maximum of 1½ hours and should therefore be limited in scope.”
Motion agreed.
Procedure of the House (Proposal 7)
The Chairman of Committees
To resolve that the following text be inserted prior to paragraph 4.42 of the Companion to the Standing Orders: “The House of Commons may be referred to by name, rather than as ‘the other place’ or ‘another place’.”
Motion agreed.
Procedure of the House (Proposal 8)
The Chairman of Committees
To resolve that the practice of debating “motions for papers” be discontinued, and that in future all general debates not inviting the House to reach a positive decision should take place on “take note” motions, which should be short, neutrally phrased and not subject to amendment.
Motion agreed.
Procedure of the House (Proposal 9)
17:25 - Division on Motion 9. - Ayes: 173 / Noes: 173 -
The Chairman of Committees
To resolve that the House adopt the following practice in respect of appellations:
Members should address the House as a whole, and they should never use the second person when addressing other Members in debate. A Member may refer to any other Member, without specifying his or her title, as “the noble Lord”, “the noble Lady”, “the noble Duke”, “the right reverend Bishop” or “the most reverend Archbishop”. Members may also, if they so wish, use the appropriate rank—for example “the noble Earl” or “the noble Baroness”—but there is no obligation to do so. When referring to another Member by name, the correct form is “Lord W”, “Lady X”, “the Duke of Y”, “the Bishop/Archbishop of Z”. Members may also use the term “my noble friend” to refer to fellow members of a political party. When referring to a Minister of the Crown, Members may refer to “the Leader of the House”, “the Minister” or “the Secretary of State”, as appropriate.
Lord Geddes
My Lords, I did intervene on a previous occasion on this subject, and, as with the previous proposal, I have not changed my mind. I know that the proposal uses the most important word “may”, but I think it is a retrograde step to start changing an age-old custom, particularly when it comes to “noble and gallant”, “noble and learned” and “noble friends”. As I said on an earlier occasion, a right reverend Prelate shall ever be a “right reverend Prelate”.
Lord Pearson of Rannoch
If he does not mind, I will support what the noble Lord, Lord Geddes, has just said. The way we use titles at the moment is something that contributes to a lack of asperity in your Lordships’ House and to the dignity of the House. Just to get rid of it or to say that the correct form is now to talk about “Lord So-and-so”, “Lady So-and-so” or even “the Duke of Y”—although I think it would have to be “the Duke of M”—is a retrograde step and unnecessary. Can we not leave it as optional, without it having to be the correct form? This form of correctness will not help our image or our deliberations at all.
Lord Lucas
My Lords, I entirely agree. I very much hope that this is something that we will allow to evolve naturally. Preserving courtesy is a very important element of this House. I entirely agree that we should never use “you”, let alone the appellations recently used by Mr Berlusconi of Chancellor Merkel. Courtesy is immensely important but to formularise it merely means that people will trip over themselves and get called out all the time. That used to be the way it was in this House when I was first here—people would get terribly upset if you did not stick “gallant” where it belonged. We have got much more relaxed about that now. I find that very comforting and I do not want to go back to a formulaic system.
Lord Higgins
My Lords, should there not be an absolute prohibition on the use of the expression, “The noble Minister”—
Lord Grenfell
My Lords, I am particularly happy at this moment to be able to agree with the noble Lord, Lord Pearson of Rannoch, for the first time in this century. I think he has got it right. If “honourable Member” is good enough for the other place, why can “noble Lord” not be good enough for this place? I do not mind whether eventually this becomes evolutionary progress towards a different system, but I do not think that we have to take the decision now that this change be made. Why chip away at the courtesies of the House—which we have been addressing for a long time this afternoon and saying how important they are—on this particular issue? It is unnecessary.
Lady Saltoun of Abernethy
My Lords, those of us who have been here quite a long time have all had to take the trouble to learn the antiquated modes of address and of referring to people. Why cannot people who have not been here for so long learn them too? Is it laziness? I do not see why we should change this. I also think that if you have to pause for a minute and think about how you refer to or address someone, it gives you a moment just to cool down in case you were thinking of being rather rude about them; rather like counting to 10 before you say anything. I do not think we should change this.
Baroness Noakes
My Lords, I completely agree with the noble Lady, Lady Saltoun. However, we have gone past the era when we strictly enforced the use of the customary forms. I agree with my noble friend Lord Lucas that it is no bad thing that the use of language should be allowed to evolve. If one sits in the House, one hears a great variety being used, both the correct form and various amendments to it, including the language in the proposal. However, those wonderful people in Hansard always correct what we say in your Lordships' House and record it in the correct form. I, for one, would like that to continue.
The Earl of Erroll
My Lords, although I agree in principle with the noble Lord, Lord Lucas, I will feel sad that the loss of the term “most reverend Primates” will allow us to forget our true origins.
Lord Grocott
My Lords, a very small step is being proposed. Therefore, I am sure that it will be rejected.
I strongly support the proposal. I felt that I had to speak today on this issue out of memory of my very good friend Lord McIntosh of Haringey, who was one of the most able Ministers I have ever seen in operation. I watched him when I first arrived, because you are always a bit diffident about making sure that you obey all the rules of the new institution, et cetera. I noticed early on that he never obeyed any of the details of the regulations laid out in the Companion, which frighten new Members to death. I am not normally anxious about those kinds of things, but it certainly caused me some anxiety to get the title absolutely right, to remind myself that it is only lawyers who are learned and that the rest of us are not, and that it is only field marshals who are gallant and those captains or corporals are not.
It is such a small change. Lord McIntosh of Haringey—my late noble friend—completely disregarded the rules from the start. If it was Lord Campbell-Savours, he would say “Lord Campbell-Savours”; he would not say “the noble Lord, Lord Campbell-Savours”. Nothing happened. No lightning struck and everyone knew perfectly well what was taking place. Ditto with the proposal that we have just passed—I was amazed that it got through; Members must have been going for tea, or something. I refer to the one that states that we should no longer refer to the House of Commons as the other place. Just to confuse everyone, we have to call it the other place. What other place? It is the House of Commons, so why not say “the House of Commons”. We have already made that revolutionary decision, so all I am suggesting to the House is that we carry on in that revolutionary spirit.
Lord Cormack
I am grateful to the noble and irreverent Lord, but we have not in fact agreed to any such thing. All we have said is that we may refer to it as the House of Commons. He, of course, will; some of us will not.
Lord Grocott
Well, I am relaxed about what people do individually. All I am saying is that I really think that it would be helpful if we gave a clear indication to new Members, other Members and the public, who find some of the appellations completely bewildering, that it is perfectly in order to do so. Nothing untoward happens; it does not affect the courtesy of debate in the slightest. We are still referring to people in the third person—which is absolutely right; it is essential that we preserve that—but we can simply say “Lord Campbell-Savours” instead of “the noble Lord, Lord Campbell-Savours.”. That has no effect whatever on his nobility. We should cease to use the endless different gradations of rank and of title, which mean nothing to anyone outside. I infinitely prefer to refer to “the Bishop of Leicester” than to “the right reverend Prelate”. I like to know where he comes from; I like to know what his title is. I am a regular, practising attender of the Church of England, but I was only vaguely aware of what a prelate was until I came here. However, I know what a bishop is.
Lady Saltoun of Abernethy
Perhaps the noble Lord will give way. There is nothing to stop him from referring to “the right reverend Prelate the Bishop of Leicester”.
Lord Grocott
It is “noble Lady”. Well, whatever. It is a matter of supreme irrelevance as long as we can be reasonably courteous to each other. As far as I can recall, only moments ago she was arguing for brevity. Now I have to say “the right reverend Prelate the Bishop of Leicester”. I prefer “the Bishop of Leicester”.
All I am saying to the House is, for goodness’ sake, we could shorten the Companion if we did not have all these requirements. I shall be very tempted to put down amendments to extend the use of the word “gallant” to everyone who has shown courage on the battlefield, not simply to someone who has become a field marshal.
I know I am pushing water uphill. This is far too revolutionary a proposal for the House to accept, but none the less the opinion of the House should probably be tested on it.
Lord Newton of Braintree
My Lords, it may surprise people who have heard me speak on one or two other things to know that I am a complete reactionary on this, but for a reason that may also surprise them. The Order Paper says:
“Members may also use the term ‘my noble friend’ to refer to fellow members of a political party”.
Where does this leave me with my Liberal Democrat friends?
Lord Tordoff
My Lords, I like to keep the traditions of the House going, but I must say that “the noble and learned Lord” really is a bit odd, is it not? We had two Nobel prize winners in this House at one time, but they were not “noble and learned”, they were just “noble”. That illustrates the futility of this whole business. Of course, “learned in the law” is what it says, but we do not say that.
I am reminded of perhaps one of the best put-downs I ever heard in your Lordships’ House. Lord Hailsham of Marylebone was on the Woolsack, and Lord Mishcon had spoken from the then opposition Front Bench. Lord Hailsham stood up afterwards and said, “I have listened with great interest to the speech of the noble and learned—oh, I do beg his pardon—the noble Lord, Lord Mishcon”. He might as well have walked across the Chamber and slapped him in the face.
Lord Wright of Richmond
I do not know how many people heard, or whether it will be recorded in Hansard tomorrow, what the noble Lord, Lord Higgins, said. I beg the noble Lord’s pardon; he is trying to get up and I think I should give way.
Lord Higgins
My Lords, I was so anxious just now to give way to the noble Lord, Lord Grenfell, that I cut myself off in mid-sentence, so perhaps I may be allowed to complete it. Could we have an absolute prohibition on the use of the expression “the noble Minister”—
Lord Gilbert
In view of the admiration that my noble friend Lord Grocott has expressed for the late Lord McIntosh, who advertised his disdain for many of the matters of procedure when he arrived here, can he reassure me that I will not be diminished in his affections when I tell him that I have not the slightest intention of observing most of the nonsenses that have been agreed this afternoon?
The Countess of Mar
My Lords, perhaps if we accept this proposal it will ease the problem of the government Front Bench, which seems to think that all females are called “Lady”. It seems to have an awful lot of problems in remembering that I am a countess.
The Chairman of Committees (Lord Brabazon of Tara)
I wonder whether the House thinks that we might now come to a conclusion on proposal 9. Before begging to move that, I must say that I have had a very interesting afternoon, as I am sure we all have. The House has conducted itself extremely well. I beg to move that proposal 9 on appellations be agreed.
The Deputy Speaker (Lord Colwyn)
My Lords, there being an equality of votes, in accordance with Standing Order No. 56, which,
“provides that the Question before the House shall be resolved in the negative unless there is a majority in its favour”,
I declare the Motion disagreed to.
Arrangement of Business
Baroness Stowell of Beeston
My Lords, before my noble friend moves the Second Reading of the Protection of Freedoms Bill, perhaps I may highlight the fact that 29 speakers have signed up to speak in the debate. If Back-Bench contributions are kept to seven minutes, the House should be able to rise around the target rising time of 10 pm.
Protection of Freedoms Bill
(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Home Office (Lord Henley)
My Lords, respect for individual freedoms and civil liberties is one of the cornerstones of our parliamentary democracy. It is the duty of the coalition Government, as it is of any Government, to protect civil liberties and hard-won freedoms. Of course, it is also our duty to protect the security of the public. It is undoubtedly the case that we live in a dangerous world. We have to contend with the threats posed by international and domestic terrorism, and by crime, disorder and anti-social behaviour. The most basic freedom is the right to live in our own homes, and go about our everyday lives, free from the fear of harm from terrorism or crime, but in responding to such threats and discharging the Government’s core responsibility for protecting the public, we must not make the mistake of undermining the very freedoms and civil liberties that we are seeking to preserve and uphold as a beacon to others.
There is a balance to be sought here and that is what we will be endeavouring to achieve in the course of the debate during the passage of this Bill. It is a balance which I am afraid to say the previous Administration failed to achieve. They went too far on a number of issues. I will list a few of them: identity cards and the national identity register; the ContactPoint database; the indefinite retention of DNA profiles of more than 1 million innocent people; hundreds of new powers of entry; a vetting and barring scheme that required the monitoring of more than 9 million, and at one stage possibly 11 million, people working with children or vulnerable adults; indiscriminate and poorly targeted terrorism stop-and-search powers; removing the right to a jury trial in serious fraud cases; and last, but by no means least, 42 days’ and 90 days’ pre-charge detention for terrorist suspects. We have already abolished ID cards and the ContactPoint database, reduced the maximum period of pre-charge detention to 14 days, and your Lordships’ House is separately considering legislation to replace control orders. The Bill deals with the legacy of many of the other measures to which I have referred.
I turn to the detail of the Bill. Part 1 introduces safeguards in respect of the retention and use of biometric material by the police and schools. There is no doubt that DNA and fingerprints are invaluable forensic tools in the investigation of crime. They help to convict the guilty and, equally importantly, can exonerate the innocent. It follows that the national DNA database should contain as many profiles of convicted individuals as possible; nothing in this part of the Bill changes that. Where a person has been convicted or cautioned for a recordable offence, their DNA profile and fingerprints will, as now, be retained indefinitely. However, it is not acceptable that, following arrest, the DNA and fingerprints of a person should be retained indefinitely, regardless of whether that person is charged or convicted of an offence. Few people would support a truly Orwellian universal DNA database, so we should not seek to build one by stealth.
Under the Bill, whenever someone is arrested and has their DNA and fingerprints taken, the police will still be able to undertake a speculative search against the relevant national databases. If they have committed an earlier offence, they should not be able to evade justice. Indeed, it was just such a check in 2006 that led to the link being made between Mark Dixie, who had been arrested in connection with a fight at the pub where he worked, and his rape and murder of Sally Anne Bowman nine months before. If an individual is not subsequently convicted of an offence, their DNA and fingerprints will only be routinely retained where they have been charged with a serious offence, and then only for three years, with the option of extending this to five years with the approval of a magistrates’ court. The police will also be able to apply to the new Biometric Commissioner to retain the DNA and fingerprints of a person arrested for, but not charged with, a serious offence in circumstances where the alleged victim was vulnerable or where retention is otherwise considered necessary for the purposes of the prevention and detection of crime.
These provisions will ensure that the National DNA Database, with over 5 million profiles, remains one of the largest of its kind in the world, continuing to support the police by helping to catch and convict serious violent and sexual offenders, but without in the process stigmatising over 1 million innocent people.
The provisions in this part also give effect to our commitment to prohibit the fingerprinting of children in schools without parental consent. It is properly a matter for schools to decide whether or not to use biometric recognition systems for such purposes as pupil registration, cashless catering and checking out books from the school library. However, schools also need to have proper regard for the sensitive nature of personal biometric information, so it is right that parents should be asked to make an informed decision about whether to accede to the processing of such information. It is also proper that pupils should have a say. Where a parent or child objects, schools will have to take reasonable steps to ensure that alternative arrangements are put in place to enable the child to access school services.
Part 2 deals with the regulation of surveillance. Closed circuit television and automatic number plate recognition systems play an important role in the prevention and detection of crime and anti-social behaviour, and in providing assurance to local communities. I fully recognise that many people want to see more CCTV cameras in order to help protect their neighbourhoods. However, as we saw with Project Champion in Birmingham last year, public confidence in the benefits of CCTV can quickly be undermined if the police, local authorities and others are seen to be imposing camera systems on local communities without proper consultation. In this regard, I look forward to hearing from the noble Earl, Lord Erroll, who assisted the Chief Constable of Thames Valley Police as part of her review of Project Champion.
The Bill takes a measured and incremental approach to the further regulation of CCTV. It provides for a code of practice on the development and use of surveillance camera systems and for the appointment of a Surveillance Camera Commissioner to oversee the operation of the code. The police and local authorities will be required to have regard to the code of practice, and we would expect that other operators of CCTV systems will also wish to adhere to the code on a voluntary basis. However, if the need arises, there is facility in the Bill to extend the duty to have regard to the code to other such operators.
The need to maintain public confidence is also at the heart of the proposals in the Bill in respect of local authorities’ use of covert investigatory powers. The intrusive powers covered by the Regulation of Investigatory Powers Act, known as RIPA, must be used proportionately. Public trust is undermined if such powers are used to pursue relatively trivial matters, such as to check whether parents live within a school catchment area or to tackle dog fouling or littering. The Bill therefore subjects the exercise of these powers by local authorities to judicial oversight and, separately, we will be bringing forward secondary legislation under RIPA to introduce a threshold test so that local authorities cannot use directed surveillance powers for trivial purposes.
Part 3 of the Bill deals with powers of entry and wheel clamping. There are now some 1,200 separate powers of entry, enabling a wide variety of officials to enter people’s homes and businesses. We do not for a moment suggest that all such powers are unjustified, but there should be a compelling case and clear safeguards before a state official has the right to demand entry into a person’s home. We intend to review all existing powers of entry. Following this review, the provisions in the Bill will enable us to repeal any powers of entry that are shown to be unnecessary or unjustified, and to add further safeguards to those powers that are to be retained. We will also introduce a code of practice governing the exercise of powers of entry.
In many ways, my noble friend Lord Selsdon can take credit for these provisions. In the last Parliament he repeatedly plugged away at this issue, introducing a succession of Private Members’ Bills. I am pleased to say that his tenacity has now borne some fruit.
Moving on from protecting people’s homes to protecting use of their vehicles, I have no doubt that a number of noble Lords will have suffered the fate of having their car clamped. While there are, of course, many reputable clamping companies, the industry is also afflicted with more than its fair share of rogue operators using menace to demand and extract excessive release fees from unsuspecting motorists. This is an area where regulation has failed to tackle the abuses in the industry. We have therefore concluded that, where there is no lawful authority, an outright ban on wheel clamping is the only tenable way forward. We recognise that for some car park operators and other landowners the ban will remove one of the parking enforcement tools available to them. We also recognise that no one has a right to park their vehicle wherever they want—motorists have responsibilities too. So the Bill extends the operation of keeper liability for unpaid parking charges, which already applies to parking enforcement on the public highway, to other land.
I move onto Part 4, which reforms key counterterrorism powers following the government review overseen by my noble friend Lord Macdonald of River Glaven.
The Bill enshrines in law our expectation that the maximum period of pre-charge detention for terrorist suspects should be no more than 14 days. That is an important advance on the position adopted under the last Government, when 28 days became the norm.
The Government recognise, however, that there will be exceptional circumstances where it may be necessary to increase the maximum period of pre-charge detention to 28 days. This view was supported by the Joint Committee chaired by the noble Lord, Lord Armstrong of Ilminster. As to the mechanism for achieving this, the Government reflected very carefully on the views of the Joint Committee but remained of the opinion that any increase to 28 days should normally be decided by Parliament and enacted through primary legislation. We accept that the option of recalling Parliament to pass fast-track legislation is not available during a period of dissolution. That is why the Bill contains a power to enable the Home Secretary to increase the maximum detention period by executive order in those very narrow circumstances.
Part 4 also puts in place the permanent replacement of the no-suspicion stop-and-search powers contained in Section 44 of the Terrorism Act 2000. That these powers failed to meet the test of necessity and proportionality is best illustrated by the fact that not one of more than 600,000 stops in Great Britain under Section 44 resulted in a conviction for a terrorist offence. Instead, the Bill provides for a much more targeted power that the independent reviewer of terrorism legislation, David Anderson QC, described as a “real and substantial change”.
Part 5 gives effect to the recommendations of the twin reviews of the vetting and barring scheme and the criminal records regime. We have a duty to protect the most vulnerable in society, be they children or adults. The Government will do nothing to increase the risk of such individuals being exposed to harm. However, we need a safeguarding system that is proportionate and promotes responsibility by employers and voluntary organisations while not putting in place unnecessary barriers to employment and volunteering. The existing system fails to live up to these aims. At worst, it creates an illusion of security by encouraging a tick-box approach to safeguarding.
The Bill creates a more balanced approach, putting an end to the requirement on more than 9 million—or, as I said earlier, 11 million—people to be registered and monitored by the state. We are also scaling back the scope of regulated activity and therefore of the barring arrangements so that they cover only those in regular or close, unsupervised contact with children, or those who provide health or personal care for adults. In the case of those working with children or adults but who do not fall within the ambit of regulated activity, it will remain open to employers and voluntary organisations to require such staff to undergo a criminal record check.
We are also streamlining the criminal records regime, including by ensuring that criminal record certificates are portable between posts within the same sector. The fairness of the system will also be enhanced by affording the subject of a criminal record certificate the opportunity to challenge any conviction or other information contained therein before sharing the certificate with his or her employer or voluntary organisation. In addition, we will increase the efficiency of the reformed safeguarding system by bringing together into one new organisation, the disclosure and barring service, the functions of the Criminal Records Bureau and the Independent Safeguarding Authority.
Part 5 also rights an historic wrong. It is now more than 40 years since gay sex between consenting adults was decriminalised. However, men with a conviction for an offence involving such behaviour are still stigmatised by having to disclose any such convictions and seeing them recorded on criminal record certificates. The Bill puts an end to such indignity.
Part 6 has the twin aims of further promoting transparency, including by extending the application of the Freedom of Information Act to additional publicly owned companies, and by enhancing the independence of the Information Commissioner. Given the commissioner’s important role in regulating information rights, including data protection and freedom of information issues, it is critical that he should go about his duties without fear or favour. There is no doubt in my mind that the current commissioner and the previous holders of the office have done that, but the provisions in this part of the Bill will help remove any impression to the contrary.
Finally, Clause 107 is a culmination of the implacable stand taken by your Lordships’ House in defending the historic right to a jury trial of those accused of a serious fraud offence. In 2003 and again in 2007, this House defeated attempts to bring in judge-only fraud trials. Clause 105 consigns the thankfully uncommenced Section 43 of the Criminal Justice Act 2003 to the legislative dustbin.
I appreciate that I have spoken at some length and that this undoubtedly is a diverse range of provisions. The golden thread running through them is a determination on the part of the Government to restore a proper balance between protecting our communities, including the most vulnerable, and our hard-won civil liberties and historic freedoms. It is this difficult balance that your Lordships’ House has striven to maintain when discharging its core role as a revising Chamber, and which we shall seek to secure as we debate further stages of the Bill. I commend it to the House.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister for his comprehensive introduction to the Bill. We may hear many fine speeches today that will characterise the Bill as a choice between protecting historical liberties and the march towards authoritarianism. However, I agree with my right honourable friend the Member for Blackburn, who said in another place that this is more a standard criminal justice amendment Bill than a sweeping redress of the balance of freedoms in this country. Some parts of the Bill present us with a stark choice not between freedom and the Orwellian state but between tiresome, sometimes intrusive inconveniences and increasing the risks to public safety. Regulation of CCTV, limits to the DNA database and crucial changes to the vetting and barring regime all present us with such a choice, and we are deeply concerned about the potential impact that the provisions may have on some of the most vulnerable communities in our society.
I will begin with the positive aspects of the Bill. We give our wholehearted support to the provision to erase historical convictions for gay sex that for far too long have blighted the lives of many gay men. We also welcome the extensions to the Freedom of Information Act 2000, but I ask the Government to look at the needs of universities and other public research organisations in relation to research and progress. In addition, we support amendments to RIPA that aim to obtain greater proportion in the scope and use of powers, and we are very happy to allow people to get married whenever they desire. The reduction in the pre-charge detention of terrorist subjects from 28 to 14 days is another thing on which we can agree on the basis of evidence, and of course we support the restriction on stop and search powers.
We also firmly support the Government's intention to crack down on cowboy clampers who have bullied and harassed members of the public. However, we are disappointed that the Government are not also seeking to ensure that there is proper regulation of the private ticketing regimes that the Bill establishes as an alternative. In the other place, the Minister said that effective self-regulation by the parking industry was the way forward. However, this issue has arisen precisely because industry self-regulation has proved totally ineffective. We are concerned that the Government's best intentions will do little more than squeeze the balloon, turning thug into extortionist as rogue clampers turn into rogue ticketers. Citizens may well turn to Citizens Advice, which dealt with more than 16,000 parking inquiries last year. However, it is under huge pressure as a result of the cuts.
Other aspects of the Bill give rise to deep anxiety and betray a fundamental distinction in our parties' attitudes towards risks to the vulnerable in our society. I am sure all noble Lords would agree that the use of closed circuit television footage during the August riots helped the police to identify and charge almost 2,000 suspects. CCTV forms a central part of police investigations. It makes people feel safer and is especially important to those living in troubled neighbourhoods. Local authorities and police forces are struggling with eye-watering budget cuts and redundancies, yet the Government are proposing to pile extra red tape on authorities that wish to set up CCTV in their area. Do they believe that local authorities and police forces have a fundamentally more sinister use for CCTV than private operators? If there is a genuine need for regulation, why do the Government not think fit to extend the safeguard to the vast majority of CCTV that is privately owned?
Technology has revolutionised the prevention and detection of crime in this country, and nowhere more so than in the use of DNA evidence. DNA provides 40,000 crime scene matches a year and alongside fingerprints provides a critical component of investigations into the most serious crimes of murder, manslaughter and rape. The Crime and Security Act 2010 proposed that the DNA of those arrested or charged with, but not convicted of, a serious recordable offence be held by police for six years. This was based on Home Office analysis that shows that the risk of re-arrest falls to the level of the general population after six years. Part 1 of the Bill reduces this limit to three years. The Conservatives were convinced by this argument in opposition and voted for a six-year limit. Why do they now wish to halve it? What new evidence has caused this U-turn, other than the ideology of their coalition partners?
The retention of DNA of those arrested or charged but not convicted is especially important in the case of rape, which suffers notoriously low charge and conviction rates. We know that it is often only after repeat offences that rapists are finally convicted. As a result of this Bill, 17,000 rape suspects would be immediately removed from the DNA database. Experience shows that some, although not all, of these individuals will go on to commit further serious violent and sexual offences. In fact, the Government know that they are creating a significant public safety problem here, which is why instead of capping retention to three years they have included a provision to extend retention by an extra two years. In an effort, perhaps, to pacify Liberal voices, the Government are offloading responsibility for key public safety decisions on to our stretched police forces.
There are numerous cases in which murderers and rapists have been convicted only because their DNA samples were retained on a database for more than three years. To reduce the number of years is both irresponsible and dangerous. Part 5 of the Bill makes significant changes to the vetting and barring scheme that was introduced in the wake of the horrific murders of Holly Wells and Jessica Chapman at the hands of their school caretaker. As noble Lords will know, the previous Labour Government, having recognised the weight of unnecessary burdens, implemented the recommendations of Sir Roger Singleton's report, which reduced the number of individuals needing to register with the ISA by approximately 2 million.
However, we believe that this Bill goes far beyond removing simply “unnecessary” burdens, and presents a serious risk to the advances that the scheme has made to child safety. The new barring regime would no longer include those who work in supervised situations with children or vulnerable adults. Charities, including the NSPCC, argue that this fundamentally misconceives the nature of supervision in places such as schools and care homes, where light-touch supervision means that there is often opportunity for an individual to develop inappropriate and abusive relationships with the child or adult. Furthermore, those convicted of serious barrable offences who do not currently work or express an interest in working with children will not be placed on the barred list at all.
This cannot be right. It is interesting to note that an online survey conducted by Fair Play for Children found that 96.6 per cent of respondents felt that adults convicted of offences against children should be placed on the barring list as soon as they are convicted.
We welcome the introduction of new portable Criminal Records Bureau checks. However, like Girlguiding UK, for example, of which I am a proud member, we are greatly concerned about changes that would mean that the CRB checks are sent to individuals before employers.
The coalition agreement states that the vetting and barring regime should be scaled back to common sense levels. We believe that this Government are at fundamental odds with the “common sense” of the majority of the public in not choosing to err on the side of caution when it comes to the safety of the most vulnerable in our society. I am glad, however, that this Bill presents us with an opportunity to address an important loophole in our law that means that those subject to sustained and harrowing experiences of stalking are not receiving the recognition and protection that they need and deserve.
Stalking behaviour is consistently unidentified and underestimated by the criminal justice system. The lack of legal definition of a stalking offence means that the police, probation officers and the courts will look at offences in isolation; as a result, patterns of behaviour are often not spotted until a serious offence is committed. Clare Bernal, for example, was shot dead in a Knightsbridge store in September 2005 by Michael Pech. Pech had stalked Clare after their three-week relationship ended, following her in the street and bombarding her with threatening calls and messages. However, after being arrested and charged with harassment he was bailed and travelled back to Slovenia, where he purchased the gun that he used to shoot Clare while awaiting sentence. We need greater clarity in the law to ensure that other women do not have to experience what happened to this young woman. There are hundreds of similar harrowing examples of women living in terror and sometimes being murdered.
I know that the Minister is a fan of the Scottish model for other provisions within this Bill, so I hope he will support changes to the Protection from Harassment Act 1997 that are similar to those introduced in Scotland last year and that would make stalking a specific offence, thereby naming and defining this poorly understood crime.
In the 10 years prior to the introduction of the offence of stalking, Strathclyde police reported a total of 70 stalking-related prosecutions. In the first six months after the enactment of stalking laws in Scotland, there were 140 prosecutions in Strathclyde alone, with an estimated 500 to 600 prosecutions in the whole of Scotland by the end of this year.
A similar small but crucial change in the law would mean that the 18.1 per cent of women estimated by the British Crime Survey of 2010-11 to have been a victim of stalking could seek greater protection. I hope that noble Lords on all sides of this House will support an amendment to this effect.
Earlier this year, the Home Secretary announced with much fanfare that this Bill,
“gives us a chance to ... return individual freedoms to the heart of our legislation”.—[Official Report, Commons, 1/3/11; col. 205.]
In many ways this is hyperbole, but by creating barriers to CCTV use, limiting DNA retention and restricting the vetting and barring scheme, exactly whose freedoms are being returned? Certainly not the freedom of local businesses, some of which suffered in the riots but were able to see the perpetrators brought to justice thanks to CCTV; nor the freedom of young women to feel safe walking the streets late at night; nor the freedom of children and young people, who in future could be supervised by paedophiles or others who have been barred.
I note the comments made by the Minister about balance. At the moment we believe that the balance is wrong. Some parts of this Bill are welcome but critical parts of it deserve close scrutiny and amendment. Together with my noble friends Lord Rosser and Lord Tunnicliffe, I look forward to working with the noble Lord and the noble Baroness, Lady Stowell, to ensure that there is better balance in this Bill.
Baroness Hamwee
My Lords, the Minister’s careful exposition of the Bill has been most helpful. I welcome the Bill with enthusiasm—such enthusiasm that I look forward to successor Bills taking civil liberties even further forward. It is a pleasure to be repealing legislation, particularly restrictive legislation, even if it takes 200 pages to do so. I do not regard this as a standard criminal justice Bill of the sort that we have become used to in recent years. I depart from the noble Baroness, Lady Royall, on that, but no doubt we will discuss it. However, I would also say that repeal should be a matter for Parliament, not for Ministers.
In our complex society technology seems to be matched by the technicalities of legislation, but the underlying concepts are simple: fundamental human freedoms, historic civil liberties and a state which has become authoritarian—certainly too authoritarian. We have all become accustomed to the demand, “Your ID, please”; we are too used to having to prove who we are. I heard—I think it was on the radio a few days ago—of an 80 year-old who was refused a purchase in an off-licence because she could not prove that she was not a teenager.
The worst thing is not knowing what is known about you. This is about the relationship between the consumer and Tesco—which is almost nil in my case, but one could say any other retailer—or between an IT user and a search engine operator, or, of course, between the citizen and the state. The obtaining and retention of information changes the relationship between citizens and the state.
I am not applying this comparison wholesale or in its entirety; however, thinking about today’s debate, one characteristic of fascist regimes seems to have been an obsessive collection and retention of information. There was certainly one regime of which that was characteristic, anyway; I am not sure whether the Italians were too chaotic to have been able to achieve it.
We talk a lot about policing by consent, and I have been wondering what that means in the year 2011. We should also ask ourselves what is the extent of consent of the citizen to observation, surveillance, the keeping of records and the sharing and use of information. That is not easy because what I may think should be applied to you and to everyone generally—that means everyone else—is not the same as what I think should be applied to me. Ask anyone who has been involved in local government: we all know of the demands for blanket CCTV coverage in order to catch the owners of dogs that foul the streets.
The existence of more than 4 million surveillance cameras makes me wonder whether their very proliferation reduces their deterrent value because they are so commonplace. They are not uniformly applied. There are three times as many automatic number-plate recognition cameras in two predominantly Muslim suburbs of Birmingham as there are in the city centre.
We have more mobile phones than we have people. We rely on them. We have a very high expectation of technology. I have a friend who, in her worst moments of tussling with her computer, calls it “the devil’s work”.
I remember the shock when people realised what information about their movements in London was stored on the Oyster card—so-called, we were told at the time of its introduction, because of the pearl inside the oyster. It is not just a single pearl; it is a whole jewellery box, if that is your view of it.
Our private lives are trespassed upon without our realising it. It is important, and I wish that I had thought of this, to draw the distinction between the right to privacy and respect for privacy. We should remember, too, that there are social pressures to share information. Your own inclusion of information on a social networking site can make you quite vulnerable.
Guidelines and codes of practice can be only as good as their operators. We saw what happened with Section 44 stops and searches. No doubt we will use the words “balance” and “proportionality” a great deal in our debates. We will range from the administrative convenience of using biometric information about children in schools and, I would say, the inevitable pressure on parents to consent to their use, to how appropriately—another good word, but sometimes a weasel word—to protect the rights of landowners from those who see a space and park on it.
At this stage of the Bill I am trying to look at broad principles, not least because a speech on the detail would take me far too long. Another principle is the law of unintended consequences, and the noble Baroness, Lady Royall, has referred to the impact of the extension of freedom of information to university research. I mention it specifically because my noble friend Lady Brinton, who cannot be here today, had wanted to do so. The problem is that even if a subject is still being investigated, is not yet patented, published or peer-reviewed or is part of a commercial and confidential contract with a partner outside the institution, it will still be caught. The Scots, under the guidance of my noble and learned friend Lord Wallace of Tankerness, when he was part of the Scottish Government—ahead of the rest of us, as so often—got this sorted, and so should we.
So we are looking at balance, proportionality and a good dollop of common sense, but the safeguards must not be illusory. I welcome the involvement of the judiciary in many of the matters covered by the Bill. We may have debates about what is appropriate as an executive decision and what should be a judicial decision, but we may need to explore the criteria for decisions that we require our magistrates and our more senior judges to take. I am not talking just about the exercise of powers of entry but, for instance, about the extension of the retention of DNA. What will be the basis for the judicial decision? For instance, what would be the standard of proof for something that was not actually a trial?
I have referred to safeguards and codes of practice. If there is more than a single regime, as there is with CCTV, we will need a lot of clarity and co-ordination between the regimes.
I do not know what the collective noun is for commissioners but we certainly need clarity and joining up about the respective responsibilities of existing and proposed commissioners, looking at it not least from the point of view of the public and trying to avoid confusion in the public mind. Let us also be sure that the independence of commissioners is real, not rhetorical.
I will try to restrain myself from seeking to add to the Bill, not least because I see this as the start of a process of a strand of legislation, but I will indulge myself by mentioning just one issue on which I have heard the current Information Commissioner talk: the need for a more effective response to blagging—that is, the unlawful accessing of personal information by trickery. If a private investigator blags information he can treat it as a business expense, so, far from there being a deterrent penalty, the taxpayer is actually subsidising the activity.
The Bill will be referred to as a Christmas tree Bill and it remains to be seen what baubles will be hung on it. I suspect that the Minister will be very cautious about getting out a piece of mistletoe and—I am searching for a verb—connecting with anyone.
The line of argument with which we are all familiar is, “If you’ve nothing to hide, you’ve nothing to fear”. I have nothing to hide—at any rate, nothing more than the usual embarrassments that we all have—but I fear the invasion of your Lordships’ privacy. This is about the sort of society that we want and how far, if at all, we should condition our rights. I welcome the Bill.
Lord Bew
My Lords, I welcome the main thrust of the Bill. With regard to the reform of counterterrorism powers, the Bill has a good balance. I say that as a Member of this House who has had reservations about the control order legislation that the Minister has before the House. In this case, I am glad to say that the Bill has got the balance right between public safety and a proper liberalisation of our law. I welcome what the Minister said about the removal of an historic indignity with respect to the gay community. I regard that as a wise and noble step in the Bill. I should also like to say that the Northern Ireland matters are handled effectively and well, as they touch on many parts of the Bill.
I have one major problem. It touches on matters dealt with in and around Clause 100 on freedom of information and its working with respect to our universities. This has already been referred to by the noble Baronesses, Lady Royall and Lady Hamwee, and I think it will be referred to again before the debate is concluded. I have to declare an interest. My own university, Queen’s University Belfast, has been rather caught up in the toils of this debate, and I am a professor at that university. While I indicate broad support for the Bill, I wish to explain why there is a case for an amendment to it to provide an exception in certain limited circumstances to pre-publication research in universities in relation to Freedom of Information Act requests. A similar exemption already exists, as the noble Baroness, Lady Hamwee, said, in Scottish freedom of information legislation, and there is a strong case for looking at that.
In my own university there has been an intense controversy concerning a well publicised case concerning tree ring data, which has very much influenced the public discussion in recent times about the operation of the Freedom of Information Act in universities. That work on tree ring data, while important, is in no way connected with my own work or the work of my own department. However, anybody who works in a university knows that the operation of the Freedom of Information Act has changed the way that we work often in quite difficult and unpredictable ways. Universities have to work within the broad framework of public law in this matter—that is widely accepted—but this is one area where there is genuine concern, shared, for example, by Universities UK. I am confident that there is a need to protect the timing of publication of research information and results. Research is highly competitive in our universities at the moment and it often has a commercial value of some significance. There are delicate issues of timing involved in such matters, and the publication of incomplete data and premature research prior to proper peer review, as the noble Baroness, Lady Hamwee, has mentioned, may damage the reputation of research in the United Kingdom. Perhaps even more importantly, the premature publication of work that is not properly peer-reviewed and fully examined may harm the interests of the general public themselves. In other words, this is a matter of concern not just for universities but for the general public as well.
The Scottish amendment that has been referred to is in fact a qualified amendment where it has to be shown that disclosure would result in substantial prejudice to the research, to those conducting it or to the university. It is not an absolute exemption. It is a qualified and quite subtle piece of legislation. If the Minister is a fan of the Scottish legislation in other respects, as the noble Baroness, Lady Royall, said, I hope that by the time we conclude our discussion of this Bill he will become a fan of the Scottish legislation in this respect also.
The Lord Bishop of Bristol
My Lords, the word “freedom” is a heady one. Throughout the ages people have struggled to resist and overthrow oppression, most recently in the so-called Arab spring. Freedom from violence, intimidation, unjust treatment and arbitrary interference by others, especially by the state, is clearly good. But freedom, having been gained, needs constantly to be protected, and in recent years Governments have become a little careless about this. That is what prompts this Bill and for that reason I welcome it.
However, the exercise of freedom is not entirely straightforward. The freedom that I have been talking about is what Sir Isaiah Berlin famously called “negative liberty”—that is, freedom from outside interference and coercion. That freedom is constantly misused to commit wrongs and damage other people, as repeated historic infringements remind us. The law has to deter and restrain such behaviour, which means that freedoms sometimes need to be curtailed, as the European Convention on Human Rights and Fundamental Freedoms—let us not forget its full title—provides.
As my noble friend the Minister has eloquently reminded us, the law has to attempt a balancing act, protecting freedoms, because they are essential to human flourishing, and where necessary restricting them in the public interest. When we have a Bill such as this before us, we have to ask whether the balance that it strikes is right in particular cases. I want to mention several areas in which the balance seems to me to be right and others where it is more questionable.
I welcome the provisions to amend anti-terrorism legislation. The reduction of the maximum pre-charge detention period to 14 days is overdue, though I wonder how viable the scheme for emergency extension will be. Similarly, the replacement of stop and search powers under Section 44 of the 2000 Act is, in view of their misuse, long overdue. The abolition of wheel clamping on private land should put an end to a highly objectionable and exploitative practice. The restriction of powers of entry brings order and proportion to a proliferation of laws that have become highly intrusive. I back the protection of biometric information on children in schools, with parental consent being required for processing information. In view of the accusation that the Church of England is institutionally homophobic, I am glad to support the disregarding of convictions for historic consensual gay sex offences.
There remain two areas of the Bill over which many people have substantial reservations. The first is the retention of fingerprints and DNA data on the police database. I understand why the Government have opted for a three-year retention period, but I worry that it tips the balance too far away from effective law enforcement by reducing the possibility of convictions for serious offences. The shadow Home Office Minister in another place argued that, if a retention period of six years were kept for the moment, a detailed analysis of DNA retention would provide more evidence to decide on the optimum length of the retention period. This argument appears to me to have force, especially since information once destroyed cannot be retrieved. The precautionary principle should be given weight here in case the consequences of the Bill turn out to be unexpectedly adverse.
Secondly, the Christian Forum for Safeguarding and a number of children’s and sporting organisations have serious concerns about safeguarding vulnerable groups and criminal record checks. The reduction of bureaucracy in this area is to be welcomed, but the provisions on barring narrow the scope for scrutinising individuals and the definition of regulated activity, and so make it more difficult to identify and bar people who represent a risk to children. There are also problems with the criterion of supervision for exempting positions from regulated activity and the production of a single certificate to the applicant only. Regrettably, the Bill fails to provide for enhanced CRB disclosures for those outside the sphere of regulated activity who have significant contact with children or vulnerable adults.
One issue raised at Second Reading in another place was the criminalisation in Section 5 of the Public Order Act 1986 of “insulting”, as distinct from “abusive” and “threatening”, words or behaviour. This has sometimes been used against people expressing controversial opinions in the street or elsewhere and it is arguable that it provides too low a threshold for an offence which restricts freedom of expression. I hope that the Government will think again about the matter.
In addition to the negative freedoms protected in this Bill, we must as a society nurture and promote the positive freedom to choose wisely and act rightly. This is something beyond the reach of government and law, but families, communities and institutions have a vital role in teaching and enabling children and adults to use their freedom not for selfish, destructive ends but for good purposes and for the benefit of others.
Freedom is always exercised in relation to others. As Joseph McLelland wrote,
“‘Autonomy’ should not mean freedom to choose … whatever one wills, but responsibility for what one chooses”.
With this background in mind, I support the general direction of this Bill.
Lord Freeman
My Lords, it is a pleasure to speak after the right reverend Prelate and I am very pleased that, given the decision of the House earlier on, I am still able to pay tribute to him with his proper title. I agree very much with what he has just said.
I support this Bill. It has been some time in gestation and, although some parts of it might need further consideration in your Lordships’ Committee, I think that this Bill needs to be hastened to the statute book. It is well balanced. I agree with the noble Lord, Lord Bew, in his comments on its construction and content.
First, I pay tribute to the noble Lord, Lord Armstrong of Ilminster, who chaired the Joint Committee of the Commons and the Lords, on which I served, which looked at the provisions dealing with detention before trial. I am sure that my noble friend Lord Goodhart, who will be speaking later, will wish to comment.
I shall concentrate on Clause 58, which deals with pre-trial detention. As noble Lords will well know, this issue has been batted back and forth over many years in terms of the length of detention before trial. For many of us, it has been an annoying bone to gnaw on for many years, so I am delighted that we have now settled on a sensible period of 14 days as the norm. I support the Home Secretary, who has been at the forefront of trying to deliver a message, not just to the police forces and our security services but to the public at large, that this should be the norm. Gone are the days when we were talking about several multiples of that period as an aspiration.
As your Lordships will know, the 28-day period effectively lapsed in January this year, and we are now back to a standard 14-days maximum detention before trial. The Joint Select Committee of your Lordships' House and the other place took evidence from not only the police but former Home Secretaries, who warned of the serious risk that there might be individual cases, and perhaps collective numbers of people, who might need to be detained beyond 14 days before trial, but that was very much the exception.
A lot has changed in the past few years. We have extra resources for the police forces and our security services, new technologies that identify where people are coming from and electronic devices to understand where the threat might come from, whether individuals or groups, but the threat remains. As we come up to the Olympics, our security services are acutely aware of the prospect of—heavens above—multiple terrorist threats. Your Lordships will wish that those never happen, but the security services and the police are taking them very seriously. Therefore, we need a provision to go to 28 days in exceptional circumstances.
The Joint Committee of your Lordships' House and the House of Commons came up with a recommendation that has not been fully accepted by the Government, except that there is a provision that, when Parliament is sitting, the Government in the form of the Home Secretary—and, in your Lordships' House, the Minister responsible for the Home Office—would bring forward an order to extend the period and would explain why that was necessary. However, there is a danger, which we need to reflect on. It is very important not to prejudice the case of an individual or group of individuals, so I think that we must accept this provision but we must make sure that we preserve proper legal proceedings and the justice of the case as well as protect our security.
I am pleased that the Government have accepted that, when Parliament is not sitting, the Home Secretary should be responsible for acting to extend the period to 28 days, subject to a number of provisions, particularly as far as the Director of Public Prosecutions is concerned. If Parliament cannot be recalled because it has been dissolved before an election, there must be a provision, in exceptional circumstances, to go to 28 days. This compromise is workable. It was not the recommendation of the Joint Committee, but I support it.
I very much support the Bill and look forward to its further and rapid progress.
Baroness Miller of Chilthorne Domer
My Lords, the Bill marks an important moment. It is the start of the turn of the tide from a very low point where sophisticated new technologies, fear of terrorism, authorities with little regard for privacy and a series of illiberal Home Secretaries combined to make the UK “surveillance Britain” under the previous Government. So when Justice called the proposals a sticking plaster, it missed the point. This Bill is a very important first step in addressing what privacy and freedoms should mean in the 21st century. Justice has just published an excellent new publication Freedom from Suspicion - Surveillance Reform for a Digital Age, which highlights the fact that we have moved into a new era that existing legislation is not able to cope with. It did not anticipate the rapidity of technological advance, which is enormous. The scale of technological capability is beyond anything that was imagined, even when the Regulation of Investigatory Powers Bill was drafted.
In common with all noble Lords, I can remember when opening someone's post without proper authorisation was a serious offence, yet in the internet age, popping in to their IP address and having a look at what they are up to is not taken as seriously as it should be. An example is that, legislatively, RIPA offered protection when, in 2006, BT and Phorm decided to run a secret trial of marketing software that intercepted the private internet sessions of thousands of customers. It was illegal, but the CPS took no action. That set a very bad precedent that ignoring RIPA is not serious.
In April this year, the Information Commissioner said:
“RIPA was drafted for the wiretap age”.
The Law Society’s comments are similar. In its written evidence to the House of Commons Public Bill Committee on this Bill, it stated that RIPA is,
“a confused and complex legislative framework for surveillance, along with equally complex and overlapping oversight arrangements”.
Other examples of the technologies give us an idea of the complexity. The Guardian has highlighted that the Metropolitan Police are operating covert surveillance technology with a signal that shuts off mobile phones remotely, intercepts communications and gathers data about thousands of users in a targeted area. That has big implications for the right to protest and freedom of expression. The Met has also purchased software to map digital movements using data gathered from social networking sites, sat-nav equipment, mobile phones, financial transactions and IP network logs.
How should this be regulated? Clause 37 gives the Secretary of State welcome power by order to require judicial authorisation for targeted surveillance authorisations by other public bodies, but I would like us to debate in Committee an amendment providing that prior judicial authorisation would be an integral part of the whole system. Such authorisation would have picked up the disgraceful, long-term and costly surveillance operations undertaken by the police on peaceful environmental movements.
How do we as parliamentarians assure ourselves that such capability is being used in the right way? We have the commissioners—my noble friend Lady Hamwee mentioned that we do not have a collective noun for a group of commissioners—and the Bill adds two new ones: the Surveillance Camera Commissioner and the Commissioner for Retention and Use of Biometric Material. The problem is that the commissioners have different roles and areas of responsibility that have been built up in a very piecemeal way. There are not overlaps but there are gaps in responsibilities. I would like to explore whether we would be better served by one privacy commissioner with an overarching role. We know that the Chief Surveillance Commissioner has quite limited powers. His function is just to keep under review the operation of the powers and duties of directed and covert surveillance. The Interception of Communications Commissioner’s role is limited to the oversight of those who issue warrants and the procedures of those acting under warrants. He has no power to investigate complaints or to advise the public.
The best model—the Information Commissioner—is responsible for promoting and enforcing compliance with the Data Protection Act 1998. It is this role of advising the public that is really important. Citizens need an independent powerful figure—who is outward-facing to them, as well as inward-facing to the authorities operating under the various legislative frameworks including RIPA. We have a lot of work to do in this Bill just to keep up with the capabilities of the technology. I welcome a debate on how to do that.
I particularly welcome the repeal of Section 44 of the Terrorism Act 2000: “stop and search”. It is very welcome indeed. I also welcome proposals that will see the destruction of the DNA samples of those arrested and charged with a minor offence but never convicted. I am, however, very disappointed that the position of children arrested or charged but never convicted of serious offences is unchanged. We need to examine that closely in this House. Finally, I am disappointed that there is no amendment to the Criminal Justice and Public Order Act 1994 so that it recognises peaceful protest as a fundamental part of democracy. It leaves in place the “aggravated trespass” offence. That was recently employed, for example, against all the individuals who were peacefully protesting with UK Uncut at Fortnum & Mason earlier this year in March. That use of “aggravated trespass” is an affront to the concept of peaceful protest.
Baroness O'Neill of Bengarve
My Lords, this Bill has quite a grand Title but a somewhat miscellaneous feel. Although this is a Second Reading debate, I will concentrate on one part of the Bill, which has already been mentioned. I hope to ask the Minister a range of questions about Part 6, which makes provision for the publication of data sets held by public authorities. I am not against what is generally called “transparency”. In fact, it is a great deal weaker than most people suppose. Transparency is an antidote to secrecy; its defect is that it is no guarantee of communication of any sort. That form of quasi communication can sometimes create an illusory advance in the things we try to do.
As I understand it, the Bill covers data sets which are neither government data—that is, produced or commissioned by government or government-controlled entities—nor official statistics. Both government data and official statistics are, after all, already subject to requirements for openness. The intention of the Bill is to bring data sets held by other public authorities—the term is slightly curiously used here—under similar, though not quite the same, requirements for openness. The other public authorities, I take it, include not only local authorities but, above all, universities, hospitals and research institutions and, no doubt, the publicly owned companies to which the Minister referred. I am not quite sure what sort of companies those are because I note that hospitals, universities and research institutions are not companies and are not publicly owned companies.
It is a complex problem and I should declare a non-pecuniary interest at this point as a member of the Royal Society Working Group on Science as a Public Enterprise. This group is looking specifically at the problem of scientific data sets—which are not always published, even when there are publications—and will report within the next few months.
Let me now return to the Bill. Given that the period within which institutions have to respond to requests to make data available is very short—three weeks or fewer—it seems to me that one effect, or perhaps purpose, of this Bill is to require investigators to make research data available on an ongoing basis, if requested, and in an ongoing way. Can the Minister confirm that the Bill removes any discretion to wait until a data set has been completed or checked, let alone until the research project is completed or the work based on that research project is published? Does the Bill require disclosure to competing research groups if they simply request that the data be made available to them? Does it require disclosure before a decision about possible commercialisation has been reached—or, indeed, can be reached?
I know that some noble Lords hope that there is a Scots remedy to this. I yield to nobody in my admiration for the remedies that have been taken in Scotland for certain matters; but, unfortunately, it is a fantasy that waiting for publication is a real solution to the problem. I will come back to why. Before that, I would like to ask a few questions about the form in which data would have to be released. Clause 100 tells us that,
“the public authority must, so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use”.
At one level, that is clearly very sensible. The provisions for the release of government data are, of course, even stronger. They must be released in a form that can be freely used, reused and redistributed to anyone—subject only, at most, to the requirement to attribute and share alike.
I do not think that the present Bill demands quite as much, in that it permits controllers of data sets that have to be released to charge a fee for reuse if they are the sole owner of a copyright in the relevant database. Am I right in reading the Bill as requiring these public authorities to release data they control to competitors, subject only to the right to charge a fee? Am I right that there is nothing to prevent those who have secured release of data from reusing them for commercial and other purposes, without needing any consent from those who compiled the data?
Do the Government envisage defining a stage in a research project before which the requirements to release data would not apply? Or does the Bill ensure that a research team at a UK university must share their data with all-comers, including scientific and commercial competitors? Do the Government envisage that overseas researchers will reciprocally open their databases to scientific and commercial competitors? If this is not the picture that the Government have in mind, it would be very helpful if the Minister could say something about the stage of a research project at which data would have to be made available upon request. I do not think we can solve this problem by referring to a point of publication: most big data sets have many publications associated with them, which occur at many stages. Which of them would be decisive for triggering susceptibility to be requested for release of the data set?
Finally, I have some boring questions about costs. A requirement to make data sets available in electronic form that permits reuse does not sound onerous if one thinks about little data sets. However, a great deal of scientific research today compiles massive data sets. We are not talking about megabytes or gigabytes of information, but about terabytes and petabytes onwards. Making data sets of this size available is not done by the click of a mouse: it is expensive, time consuming and skilled. If data sets are to be reusable by others, it is likely that those who provide them will have to make metadata available. Do the Government have a view of the costs of this provision of the Bill? Have the Government identified who will bear the costs? Who is responsible for data archiving, for data integrity and for data security? On which budgets do the costs fall? What provisions do the Government have in mind against data mining that peels away anonymisation from ostensibly anomynised personal data? Do the Government think that these provisions are likely to incentivise public authorities which have such large databases to enter into partnership with private sector organisations which will hold the data—thereby eluding the provisions of this legislation? Open communication matters for science and for citizens; but mandated disclosure of reusable data in response to all and any requests, regardless of costs and time constraints, may not be the best way forward.
Lord Hodgson of Astley Abbotts
My Lords, I give my strong support to the policy thrust behind this Bill. Of course the title, the “Protection of Freedoms Bill”, is a seductive one—who could possibly object to that?—but there is meat in here that is certainly worthy of our support. There is the destruction rule for fingerprints and DNA profiles, the proper regulation of CCTV cameras, and the proposal to give coherence to powers of entry which my noble friend Lord Selsdon has pioneered for a long time, and which I myself had reason to learn about when my flat was broken into by the gas company on the grounds that the neighbour smelt gas. When no gas was found, the gas company seemed to have little responsibility for repairing the door or, indeed, apologising for what it had done.
The Bill also rolls back some of the ineffective and disproportionate aspects of the vetting and barring regime. This has deterred many people from volunteering to help our fellow citizens. The noble Baroness, Lady Royall of Blaisdon, for whom I have the greatest respect, chided my noble friend about this in her opening remarks. She painted the issue in what I can only describe as primary colours, but I will seek to persuade her that actually this is an issue which requires a more pastel and nuanced approach than she has shown so far.
If I have a concern, it is that we have not followed through the logic of some of the proposals in the Bill far enough. My noble friend has told us how it proposes a three-year retention period with a possible two-year extension for identification material taken from people arrested or charged but not convicted, and I thoroughly support that. However, perhaps I may draw my noble friend’s attention to the Elmer database. This database is maintained by the Serious and Organised Crime Agency. It receives reports about possible money laundering and other criminal activities under the Proceedings of Crime Act 2002 entitled “Suspicious Activity Reports” or SARs. It may surprise the House to know that there are now 1.5 million of our fellow citizens on the Elmer database and that this number is increasing by 200,000 a year. Almost 50 per cent of the entries are more than six years old. It is hoped—I repeat, hoped—to delete these by the end of 2011. But this gives rise to some serious civil liberty issues. People do not know that they are on the database, whether the information held about them is correct, and they have no right to find out.
When the committee of your Lordships’ House of which I am a member inquired about this of the SOCA authorities, they said that they might tell us, but they might not. Some entries are inadvertent, access to the database, at least historically, has not been well controlled, and there is no de minimis level of returns. For some years I was head of the compliance committee of a building society. We made several hundred returns every year, none of which was ever for more than about £200 or £300. So I offer to my noble friend the thought that if regulatory principles are that they should be proportionate, accountable, targeted, transparent and consistent, there should be some amendments to bring the Elmer database under much tighter control than we have had it so far.
I turn next to Part 5 covering the vetting and barring regime, and I begin by saying that I understand absolutely the repulsion—it is not too strong a word—that people feel about the abuse of children and vulnerable adults; any parent would. But there is a really important balance to be struck. I prepared for the Government a report looking into what deters people from giving time and money in volunteering in order to help the charity sector. It was called Unshackling Good Neighbours. The evidence we received from across the country was that many of our fellow citizens are put off volunteering by what they see as a lack of trust and a lack of judgment. This must ultimately damage the welfare of children and vulnerable adults. We had evidence from a doctor in the north of England. She was aged 67 and had retired from the health service. She offered to give some time to the Alzheimer’s Society to deal with patients suffering from Alzheimer’s. The society insisted that she be CRB checked because “frequent and intensive” contact, the level we have at the moment, means one visit a month. She said, “The state has an audit trail for me going back 40 years since I became a doctor. If the state doesn’t trust me, I am not going to do the work”. That was not unique; there were lots of cases like it.
Perhaps I may say to the noble Baroness, Lady Royall, with the utmost respect for her position, that the whole CRB industry has become institutionalised. If you take evidence from charities and voluntary groups, they bring their CRB teams along. Of course they are going to argue that more CRB checks are needed because that is their job. The Charity Commissioners and Ofsted ask charities whether they have carried out their CRB checks. I understand that this is important, but the CRB is a matter of law. The Charity Commissioners are concerned with charity law and Ofsted is concerned with educational standards. They might as well ask whether they ensure that teachers drive at 30 miles an hour when they come to school in the morning.
The police child protection officers ask intrusive and difficult questions of volunteers and there are commercial companies doing CRB checks who like the extension of it because it means more fees for them. Perhaps I may briefly give the House a flavour of this from a letter we had from a lady in Manchester:
“About 8 years ago I decided to get involved in a local Manchester Drama group, whose members range from 7 to 80 years old. A number of us assumed responsibility for teaching the children and preparing them for the annual pantomime and other productions. Naturally, we were CRB checked—a process I had no issue with and wholeheartedly support.
However—having been CRB approved, we were invited to a session with the local child protection officer. I came away from that meeting with a number of very serious questions as to whether I should get involved with this sort of group. The talk left me feeling I would potentially be placing myself in situations of real risk”.
There are many cases which repeat these concerns about the lack of trust and judgment. If you ask some of the other experts, they can explain where the vulnerable points are: they are outside the school gates and on the social networking sites. That is where the grooming takes place, and all too often they are outside any remit of the CRB. I hope that my noble friend will stand firm against any attempt to push back this issue, and I hope also that he may be inclined to think about whether we cannot find another place where the balance can be struck.
I should like his reassurance—I think he gave us one in his opening remarks—that the portable passport is now coming into being. Can he let the House know what the charge for this passport will be? There has been a lot of concern in the sector that there will be a substantial charge. Could he also let us know what the definition of “frequent and intensive” contact will be in the future? If it is to be in new regulations, it would be helpful for us to know this when we come to debate these clauses in Committee.
I want to leave the debate with one further thought. It is a small issue, but one that is growing in importance. In future, how are we going to ensure the accuracy of information placed on social networking websites and who will be responsible for this? This is a freedom which is increasingly going to need protecting. Two sites in particular have given rise to public anxiety: Facebook, which is well known, and a site called TripAdvisor that gives recommendations about holidays and other leisure sites. The importance of these and other social networking websites will surely continue to increase. A situation can now arise where people and their businesses can be irredeemably damaged by completely inaccurate statements that are put up on these websites and for which they can obtain no redress. Last week a case was reported on the radio of a plumber in Southampton whose business was wrecked by the fact that it was alleged that he was a paedophile, and destructive messages are published about leisure sites by rivals to try to ensure that they get a greater part of the business. People are entitled to some clear way of challenging these statements and, where appropriate, of obtaining redress. I would be interested to hear whether my noble friend has any policy developments under consideration to deal with this issue, one that is surely going to increase in importance in the future.
Baroness Dean of Thornton-le-Fylde
My Lords, I, too, welcome many of the provisions of this Bill. Social networking is one of the areas of concern. If it is on the social network, people believe it and do not believe the official authorities. A whole group of young people growing up today look at the social network and think if it is on there, it must be right. People who have bad instincts towards children are drawn to it because that is where young people go. I, too, raise the question referred to by the noble Lord, Lord Hodgson, a few moments ago.
I welcome very much Clause 58 on detention without charge. I felt that my own Government were going too far in their proposals and I would not have supported them. I support very much the change that is being proposed, and indeed, the removal of a homosexual record. What was then regarded as a criminal act is not so today, so it makes sense to remove it.
My concerns are on Part 5 and this is where I depart from some of the views of the noble Lord, Lord Hodgson. It is very easy to caricature a vetting and barring system as the nanny state gone mad and being completely wrong. We are talking about the protection of children. I agree that we need to get the balance right but much of the provisions in legislation arose out of cases where children were groomed and treated in an appalling way, which, as the noble Lord, Lord Hodgson, rightly says, is absolutely repugnant to any decent person. I feel that the balance in Part 5 has swung too much from one part to the other. We need to get some balance into the Bill. I hope that the Minister will listen and perhaps deserve that little bunch of mistletoe at the end of the Bill by getting some changes into this area.
The most popular team sport for youngsters in the UK, which is not one that I follow, is football. I have spoken to the Football Association because I know that it has a very good structure. It has just under 55,000 youth teams up and down the country covering about 1 million children. Each year, around 35,000 people are vetted to work with those youngsters. There is a welfare officer working with the Child Protection in Sport Unit and it is all properly organised. One could repeat that among a number of charities. There are the big organisations and the small ones that do not have that support, which will be affected profoundly by the Bill. The effect will be not from the adults working with them but from the youngsters taking part where parents may be concerned that their children are not being properly protected.
The Government have said that in future only the applicant will complete the form and only the applicant will see the certificate, as I would call it, of the vetting. At the moment, it goes to the employer or the registered organisation, but that will not happen in the future. One of the rationales for this is that only 5 per cent of the applications actually have some content or concern which means that you probably would not want those people working with youngsters. The Football Association says that it does not accept that figure and that it is around 15 per cent. Irrespective of whether it is 5 per cent or 15 per cent, that of itself is a case to argue that the Bill has gone too far. That does not mean that I do not believe that there need to be changes.
We have talked about social networking and we talked earlier about new technology—even looking at our own procedures in this House. I wonder whether the Minister should perhaps give some consideration to saying that, for the 95 per cent, or indeed the 85 per cent, that cause no concern at all and whose applications go through without problem, the notification of clearance could go by e-mail. At the moment it goes in the mail, but e-mail is much quicker and not as expensive. At the moment the whole problem will be loaded on to the voluntary organisations. We know what will happen. There will be a dreadful case that is all over the papers. The Daily Mail will be calling for the Minister’s head because he has not given proper protection to children. We need to find a balance to make it more efficient, so that it is not so overbearing, but protects children. That is one thing that we could have. The ones that cause concern could then go in the normal way to the organisation, whether it is an employer or a voluntary organisation.
The Government say, “Well, sometimes there are errors”. We could allow a period between an individual being told, “We are not going to clear you to work with children”, and the third party—the employer or organisation—being told. It could be a period of two weeks, a month, or whatever to allow the individual to appeal that the information is incorrect. Certainly that would bring back some kind of balance. There is also the issue of transferring the cost entirely under the present proposals from the centre to the organisations, many of which do not have the resources to do it. What will happen? At the moment, they will be able to take a judgment about not having clearance and, again, we will have not one but several public scandals.
The Bill provides—this is very welcome—the portability of the clearance. Once you are cleared, you are cleared, and that is it. Quite often volunteers work not for one organisation but several. That would be extremely helpful in improving matters. The Bill has a number of unintended consequences in this part and I look forward to discussing it as we go through the Committee stage. I hope that the Minister will deserve that little bunch of Christmas fare at the end of it. I am sure he will.
Lord Goodhart
My Lords, in recent years we have had a series of Bills that could be described properly as prevention of freedom Bills. We now have a Protection of Freedoms Bill. The Bill is rightly so named. It is an excellent Bill which I strongly support.
Some people—perhaps particularly some leaders of the Labour Party—argue that the Bill goes in the wrong direction or goes too far. Others say that it does not go far enough. I think that the Bill gets it about right. There are undoubtedly matters of detail that can be corrected but broadly it is about right. There are, of course, some simple and obvious provisions that very few people could possibly challenge—for example, Clause 108 which now allows marriages and civic partnerships to be entered into at any time of night or day, although that might meet with the objection of neighbours who did not like a wedding being conducted at midnight.
A number of people claim that parts of the Bill should go further. Examples include, among others, Part 1 on biometric data, Part 3 on powers of entry and vehicles left on land, and Part 4 on counterterrorism. I do not want at this stage to express my own views on matters where I have had little professional experience. This rules out, for example, Part 1 on biometric data. But there are two matters that I want to speak on tonight: some aspects of Chapter 1 of Part 3 on powers of entry and Part 4 dealing with counterterrorism.
Chapter 1 of Part 3 contains many provisions which give rise to Henry VIII powers—powers for the Government to alter or repeal provisions of another Act of Parliament by order rather than by a separate statute. I am interested in these provisions because I am a former chairman of the Delegated Powers Committee which deals in particular with Henry VIII powers. The 20th report of the Delegated Powers Committee dealing with this Bill found that most Henry VIII powers in Clauses 39 to 41 are acceptable. However, it said that another Henry VIII power in Clause 51 is inadequate because the first exercise of that power should be made by the affirmative procedure and not by the negative procedure.
The report on the same subject by the Constitution Committee is critical of Clause 41. However, the validity of the Henry VIII powers is more of a matter for the Delegated Powers Committee than the Constitution Committee. I believe that no modification is needed to Clause 41. What would then be left to be dealt with by way of altering the Henry VIII clause would be a minor change to Clause 51 which would cause no problem to anybody.
Much more important issues arise over Clause 58 of the Bill which deals with a temporary extension of detention in an emergency involving threats of terrorism. The general position in the Bill as is stands is that the maximum time for detention of a terrorist suspect will be 14 days and there will no longer be a power for the Home Secretary to extend the term to 28 days. There will, however, be a power for Parliament to enact one or other of two now-existing draft Bills which will make it possible to extend the period of 14 days in an emergency.
The proposal was, at an early stage, considered by the Joint Committee on the draft Detention of Terrorist Suspects (Temporary Extension) Bills, which has already been mentioned by my noble friend Lord Freeman. I was a member of that committee and I am very glad that our chairman, the noble Lord, Lord Armstrong, will be speaking shortly on the same subject. It became apparent to us in the committee that although very quick action could be taken even when Parliament was in recess, there was a severe problem if there was no Parliament. That would happen from the time when Parliament had been dissolved until a new one had been elected and its Members had taken office. While it is very unlikely that terrorist activities will be launched at such a time, it is obviously not impossible.
Our committee therefore recommended the introduction of what is now basically Clause 58 to make it possible to deal with this problem. Clause 58 has been fiercely attacked by Liberty and less fiercely by Justice, of which I am a former chair. Liberty said:
“Under Clause 58, 28-day pre-charge could potentially be activated by the Home Secretary (with no need for parliamentary approval) whenever she considered it operationally convenient”.
That is absolutely untrue. Justice said:
“We believe extending the maximum period of pre-charge detention in terrorism cases is unlikely ever to be an appropriate response to a public emergency”.
That is true enough as it is unlikely that danger will arise during the short period that occurs only immediately before and immediately after a general election. However, the risk should not be ignored.
I finish with a broad picture of what I think should be done. This is a Bill that almost all of us can support very largely. Many of us would like, in some respects, to go further but our aim, I believe, must be to produce a good result, not necessarily an ideal one. Therefore we need to be careful about the amendments we consider when we are dealing again with the Bill.
Lord Dear
My Lords, I, too, join the growing chorus of support for the Bill. I support its broad thrust. I welcome it and think it is timely. I will go through the list very quickly because noble Lords have already made the points. So far as the regulation of CCTV is concerned, of course I applaud that. As to the destruction, retention and use of fingerprints and DNA samples and so on, the existing position is totally untenable and the proposals in the Bill will bring us into line with what is already happening in Scotland and will broadly support the judgment put forward by the European Court of Human Rights in the case of S and Marper v United Kingdom in 2008.
So far as local authorities are concerned and the way in which some of them have used the Regulation of Investigatory Powers Act to deal with some of their problems, if ever there was a case of sledgehammers being deployed against walnuts, I have not seen a better one. That has to be curbed. The Bill seeks to do so and I applaud it. I also support, as other Members of your Lordships’ House have, Chapter 4 of Part 5, which seeks to disregard some convictions for some homosexual acts in the past.
The issue of terrorism is closer to my own heart for professional reasons. I agree that Section 44 of the Terrorism Act 2000, providing for stop and search without reasonable suspicion, is also untenable—a word which I have used already. The move towards using Section 43 instead, where reasonable suspicion is required, is to be applauded. In particular I very firmly support the proposed reduction from 28 days to 14 days in cases of pre-charge detention of suspected terrorists. I was the noble Lord who successfully proposed the amendment to stay at 28 days in the face of a determined attempt a couple of years ago to extend the period to 42 days, so I am speaking with a particular interest at heart. I note, of course, the saving provision for 28 days in emergency circumstances. I think that that is a very sensible move.
I want to draw attention to one freedom that is not covered in the Bill: the freedom of speech, one of the most fundamental of all the freedoms that we cherish in this country, and have cherished for a very long time. I say immediately that I have no intention whatever of seeking to amend the Bill to bring something in to cover freedom of speech, but I ask noble Lords to bear with me for a very short time while I introduce the subject very briefly and give the reasons why.
In common with many other Members of your Lordships’ House and a significant number of Members of the other place, I support the removal of the word insulting from Section 5 of the Public Order Act 1986. The term,
“threatening, abusive or insulting words or behaviour”,
has been included in legislation from as far back as the Public Order Act 1936, an Act which has been steadily amended as society has become more complex. Under Section 5 of the current Act, “insulting” stands at the very bottom rung of the ladder of descending seriousness. The ladder begins at the top with Section 4 of the 1986 Act, which criminalises intentional harassment and other criminal acts, going down through Section 4A into Section 5, where no intent is required for the offence to have been committed.
I have of course oversimplified that, but it gives you a picture of descending a ladder of criminality until one reaches the very bottom rung, which is insulting behaviour. “Insulting” is obviously the least serious of the range of behaviour encompassed by the current legislation. It is now also the subject of a good deal of debate, not least because on a significant number of occasions the enforcement of the legislation, so far as it applies to insulting, is seen by many to be an impediment to the proper exercise of free speech, whether or not one supports the views expressed by some of the defendants in some of the more contentious cases that have focused attention on this issue.
In normal circumstances, I would table an amendment in Committee to seek to strike out the word insulting from Section 5 of the current Act. However, on 13 October the Government announced a consultation exercise to examine police powers for public order under three heads, one of which is to examine this very issue—the possible removal of the word insulting from Section 5. That consultation period will run until 13 January 2012. For obvious reasons it would not be sensible or proper to press for an amendment while the consultation procedure is in place. I simply ask the Minister at this stage—a stage when we are examining and discussing many other fundamental freedoms, issues such as privacy, due process, freedom from arbitrary arrest and many others—to note my remarks, to recognise the fundamental importance of freedom of speech in this country, and perhaps to endorse my remarks in welcoming the conclusion of the consultation procedure in January next year, when we might have an early opportunity to return to this issue and to debate it fully, a debate which otherwise should and, I believe, would have been featured in this Bill today. As I said, however, the Bill as it stands has my broad support and I welcome it.
Baroness Walmsley
My Lords, I, too, give a general welcome to this important Bill and intend to focus my remarks on Part 5. Like the noble Baroness, Lady Dean of Thornton-Le-Fylde, I feel that a little nuancing may be in order.
I welcome the Government’s intention to streamline the vetting and barring system and to right the wrong about legal gay sex. In particular, I welcome the portable CRB checks, for which there is clearly a need. I have heard many stories of people working in a number of schools, sports organisations or cadet forces who could almost paper a wall with their CRB reports. However, there is a danger of a two-tier system, one free and the other paid for. When the person shows his portable report to an employer, that employer will be able to check online that it is valid and up to date—so far, so good. But this database requires regular updating. Employers can check both the CRB report and whether the person is barred on two separate systems, for each of which they will have to pay a subscription. There will also be a cost to individuals for this portability. I fear that, if the portable check has a cost and the individual check is free, people may choose the latter, thereby frustrating the Government's intention to streamline the system.
We have been approached by a number of highly respected groups that have concerns about the changes to the vetting and barring system. The Sport and Recreation Alliance, which represents 320 governing bodies of sports that work with hundreds of thousands of young people and volunteers, believes that the proposed measures could undermine their effective and efficient centralised systems and transfer significant burdens to volunteers. The Association of Colleges points out that colleges employ 245,000 staff, of which 79,000 are non-teaching. More than 860,000 16 to 18 year-olds study at colleges, whereas only 434,000 of this age group study in schools, yet colleges are to be put under a different regime from schools. When the participation age is raised to 17 and then 18, the number at colleges will probably rise even further. Sixty-three thousand 14 to 16 year-olds currently attend a college at least one day per week, and this number is likely to rise as well, following the Wolf report. Colleges feel that all young people should be given the same protection wherever they study, and that means looking again at some of the proposals as the Bill goes through your Lordships' House.
The problem is that the Bill proposes reducing the amount of regulated activity, which would have the effect of reducing the number of people covered by the vetting and barring regime—all well and good. While this may be desirable for some groups, it must be done very carefully to avoid letting through the net people who would seek to harm children. These people are often very clever and plausible, so we need a system that is cleverer. The key to this is information, so that informed decisions can be made. However, as the noble Baroness, Lady Dean, said, the disclosure will no longer be sent directly to the organisation but to the person being screened, who then has to send it on.
There are a number of problems with this that have been raised with us by a number of children's organisations. I understand that the Government have decided to send the reports to the individual because there have, in the past, been some cases of wrong information going to the employer, which is highly undesirable. However, in 2010, only 0.06 per cent of certificates issued were found to have errors, so it would seem that the proposal is hugely disproportionate. Surely this problem could be catered for by sending it to the individual and giving them a period to correct anything that is wrong before sending it directly to the employer. To prevent employers getting timely information because of such a small percentage of errors is over the top.
Organisations raise a number of other problems besides cost. If the individual does not send in the report, the organisation has to spend time nagging them for it. They may want it passed on to a local volunteer, which would have an effect on the relationship between the two and put too much responsibility on that volunteer. The person would have to be suspended while the report was awaited, giving rise to sometimes quite unnecessary and unwarranted suspicion. As the noble Baroness, Lady Dean, said, the FA says that only 15 per cent of its disclosures have what is called “content”—in other words, material that needs looking at, yet that organisation may have to waste its time chasing up the other 85 per cent quite unnecessarily. So it and all the other 320 sports organisations in the alliance feel that Clause 79 as it stands makes their job of protecting young people more difficult and creates opportunities for determined predators to manipulate and frustrate the safeguarding process.
Another issue that has been raised is the extension of non-regulated activity to include work that has “day to day” supervision. The NSPCC, the Children’s Society, Children England, the Children’s Commissioner and others have raised this issue. First of all, we need to get the right definition of “supervised”—that is vital—but we should also bear in mind that even closely supervised people have the opportunity to develop a trusting relationship with young people that could be exploited at other times and in other places.
Another issue is that people will be placed on the barring list only if the ISA, or its successor, has reason to believe that the person is or might in the future want to work with children or vulnerable adults—the noble Baroness, Lady Royall, referred to that. A survey has shown that nearly 97 per cent of the public believe that if a person has been convicted of an offence that is sufficient to bar them they should not be allowed anywhere near children in any capacity—here we are not talking about reputable doctors. It seems unnecessary for the ISA to have to spend its valuable time and expertise considering whether a person might or might not, at some time in the future, want to work in a regulated role.
This brings us to the information on the CRB certificate. Under the Government’s proposals, if employers choose to perform a CRB check on someone working with children outside of regulated activity, they will not be able to see whether that person is barred. Sir Roger Singleton, chair of the ISA, has estimated that one in five people who are barred by it have never been near the police, so their CRB disclosure would not show this. For this reason, I welcome the proposed merger of the ISA and the CRB.
None of us wants children to believe that all adults pose a threat to them—far from it. We all want a simple, no-fuss system that weeds out the bad guys without deterring the good guys who we want to encourage to work with our young people. We will work with the Minister as the Bill goes through this House in order to produce such a system that does just that: get the balance right. Currently, as I said, I believe that a little nuancing is required.
Lord Selsdon
My Lords, I suppose that freedom and privacy are two of the most important things in my life. My interest in this matter goes back many years to the banking world, when we had the phrases “duty of care” to your customer and “know thy customer”. I found as time went by that nobody knew anybody: you did not know the gasman; you did not know the postman. Strangers started to appear on the doorstep. In the banking world, we were concerned particularly to protect our clients from all sorts of invasions. This started for me and my colleagues along the lines of, “We had better introduce a Bill”, so, way back in the 1970s, we drafted the protection of privacy Bill, because it was about privacy that we were concerned. Gradually, we found that there were more and more opportunities for government or outside bodies to enter people’s property without permission and do all sorts of strange things, whether or not it was the gasman. This led to my drafting, with considerable help, the Powers of Entry etc. Bill.
This was done initially with the help of a professor from Lincoln University, Richard Stone, who produced the authoritative book, The Law of Entry, Search and Seizure. I began by asking Ministers questions—I think there were well over 100, or maybe 200—as to what the powers of entry were. They did not know the answer, and the standard response was, “The information is not centrally available”. They did not say that the cost of getting it was too much. So I drew people’s attention to the book and put it in the Library, and certain Ministers began to reply. Then, rather to my surprise, the Labour Party and Government became interested and were extraordinarily helpful. Gordon Brown made an announcement at Downing Street that we must do something to control the abilities of people to enter people’s homes without their permission. The Bill, which, as I said, was called the Powers of Entry etc. Bill, lasted about three years. There were three editions, and the final one passed the House with the great help of the Labour Government in March last year.
I have learnt in this place that you never get a Private Member’s Bill through unless you find someone who picks it up in the Commons after winning a ballot. You have to drip-feed the right people in the right way, and watch the stalactites and stalagmites grow. It was therefore a great pleasure to me when we finally got this through with the help of the noble Lord, Lord West, despite the objections of his officials at the Home Office for quite a period of time. We had a Public Bill Committee, which people from all parts of the House served on, and I was lucky enough in the end to get the Home Office to join in. I would mention the name of the man in the Home Office—he was brilliant. Together, we found our starting point was 150, then 250, then 300 pieces of primary or secondary legislation. Then the Home Office, working often through the night, arrived at somewhere around 2,500. Of course they change.
However, who can go into whose house? We thought that it might be right to say that, first, they should knock on the door and say who they are, and then perhaps they should prove who they are. They should probably not do it in the middle of the night and they should probably not do it on a Sunday, they should wear good clothes, and they should possibly have something to say, such as, “I am here for this reason”. Your Lordships will have seen in the press from time to time many occasions when, because a postcode was wrong or the wrong button was pressed, someone beat down the door of someone else’s house, took something away or caused problems. What pleased me so much about this was that, gradually, people became interested. I knew the Government would not necessarily take it up, so I was so grateful that the Labour Government lost the election, because it gave me a chance to put a bit of pressure on the Conservative Government, one of whose wise men rang me in the middle of the night when I was abroad and said, “Your Bill is going to be adopted when we win the election”. I said that I would wait and see whether that happened or not.
Anyway, I did not hear much more. Then, suddenly, the Protection of Freedoms Bill emerged and the powers of entry were within it, bearing some resemblance to what I and my team had done. However, the government system had failed to recognise that we did not leave it by pushing a Bill for someone else to take up and do all the work on. We had communicated. I had written to every local authority in the land and asked for their views. I had written to every bishop and asked him to get in touch with the parish councils. We had written to every one of the bodies that had powers of entry asking for their advice and guidance, and I had put out a website that went right the way around different parts of the world. More than that, we had drafted a petition and were just looking for the 100,000 signatures in order to present a petition at the Box. This was all with the help of the Public Bill Office and the people in the House of Lords.
I am now extremely grateful as I stand opposite the noble Baroness, Lady Royall, and I thank her so much for the help of her Government and ask whether she will help me to persuade this Government to do things in the right way. They started off correctly, but I am glad they put the powers of entry section into another box, as it was pretty useless. It did not even list all the powers, because they change from day to day, but said they would introduce a code of conduct.
I wanted to know what that code of conduct did, because the Bill that we had already had said that you must not go into someone else’s property, office or place of work without permission or a court order. Now it is the court order that has not yet appeared, because it is relatively easy for anyone to obtain one at any time. The noble and learned Lord, Lord Scott of Foscote, was on our team. As your noble Lordships will know, he hunts quite regularly and said that he could even issue an order from the back of a horse if necessary. The issuing of orders is not a problem. We took out one particular area within the Bill that was quite important and that separated the powers of entry from everything else—a saving. It said:
“Nothing in this Act shall apply to the issue or execution of warrants in connection with indictable offences, including terrorist offences”.
So it was really about only commercial or other searches. I had some sympathy for the trading standards officers who took me back to the original Truck Acts, which go back over a long, long period. They had a point when they said that when people were mistrading or behaving badly they had to have the right to go in pretty quickly before the goods had gone.
I now ask the Government whether they would be kind enough to help me. They have listed the powers of entry in the Bill, but they have said they will produce a code of conduct. We do not really need a code of conduct, we need the permission in effect to require that powers are granted for the issue of rights of entry, that you should list them all, and, more than that, that you have the schedule that is necessary here.
The powers of entry all change regularly, and this is where we come to that strange thing, Henry VIII clauses, which I am not terrible well briefed on. The Public Bill Office asked me, perfectly simply, “What do you want to do?”. I said that I wanted to stop the Government doing the wrong things in the wrong way at the wrong time. This came to the fact that maybe the Government should not be allowed to introduce any new powers of entry without primary legislation but should be allowed to remove any unnecessary powers of entry on their own.
I sit down with a simple point; when we come to Committee, I will try to introduce that part of the Bill that we did together to save the Government time and money. If they are going to follow the proposal that they are laying down here, it will be two to three years before they manage to get everything sorted out. In the mean time, my great friend and colleague Professor Richard Stone has got the Oxford University Press to agree to issue a new edition of The Law of Entry, Search and Seizure, which will come out quickly. It would be a pity if that came out before the Government had got their act together. I am going to put pressure on my noble friend on the Front Bench when the Bill comes to Committee and ask for his support. In the mean time, I am very grateful to the party opposite for everything they did to help.
Lord Bradshaw
My Lords, I am going to deal with something very down to earth when contrasted with the noble Lord, Lord Selsdon. It concerns Chapter 2 on the clamping and towing away of vehicles. We are concerned that what are now rogue clampers will become rogue ticketers. It was argued in another place that the existing consumer law—the Fraud Act and the Theft Act—provides suitable protection for cities. I do not share that view and neither does Citizens Advice, because resorting to law is extremely long-winded and expensive. We have to deal with these issues effectively during the passage of this Bill.
First, we have to be certain that there is an independent appeals body that is funded by the industry, and that its existence is made plain both on the notices and the parking tickets that are received by people. We should insist that those who have the power to issue tickets should be members of an accredited trade association. I believe there is only one at the moment, but we have to take account of the fact that there will be more than one. The appeals body to which I have referred should be able to decide on a reasonable level of charging by reference to the charges imposed by local authorities or several adjacent car parks. It should be possible, even though charges will vary in many places.
The appeals body should also take account of the fact that the car park is properly lit and that, if people are to be penalised for parking over the dividing lines, those lines are clearly marked on the ground—not a small swab of paint in the corner, but properly marked. All that can be covered in regulations. The most important thing is that we are clear that only properly accredited people can access the DVLA database. That is the key. I am certain that, now, a lot of absolutely awful people are getting access to it.
I shall delay your Lordships for one or two more moments. I was a member of a police authority for a long time, and when I was, we had many cases of people accessing databases on an irregular basis. We have to be certain that only bona fide parking operators have that access.
Lord Armstrong of Ilminster
My Lords, this is a veritable bran-tub of a Bill, as is apparent from the Long Title. It might be more charitably described as a Christmas pie full of plums. I propose, like little Jack Horner, to put in my thumb and pull out a plum—like my noble friend Lady O'Neill, only one plum for consideration at this stage. That plum is Part 4, which deals with counterterrorism powers.
There is clearly around the House a general welcome for Clause 57, which states unambiguously that the maximum period of detention without charge for a terrorist suspect shall be 14 days. That is already a long period to hold anyone in detention without charging him or her—much longer than would be acceptable for any other criminal offence.
However, there remains the persistent fear that there may well be circumstances in which there are compelling reasons for detaining someone suspected of having committed a terrorist offence without charge for longer than 14 days. The need to do so has not arisen during the past four or five years, but in this highly unpredictable area, we cannot exclude the possibility of an emergency in which it might be necessary to be able to do so—in which, indeed, the consequences of not being able to do so might be not just unacceptably serious, but literally fatal: some people might die who would otherwise not have died.
The Government have taken the view that an extension of detention without charge is so serious a restraint of freedom and so grave a breach of the rights of any citizen that it should be effected only by the introduction of emergency primary legislation when the need actually presents itself. They therefore prepared draft legislation, which could be introduced, if and when the need arose, to extend the period of detention of a terrorist suspect without charge for not more than 14 days, up to a maximum of 28 days.
A Joint Committee of Members of your Lordships' House and of the other place, of which I had the privilege of being the chairman, and the pleasure of having the noble Lords, Lord Freeman and Lord Goodhart, as fellow members, was set up to give the draft legislation the sort of pre-legislative scrutiny for which there would not be time if the legislation had to be introduced and passed as quickly as possible in an emergency.
My Lords, we understood and respected the Government's desire to make sure that a power to extend detention without charge should be exercised as rarely as possible, and that, ideally, it should be introduced only subject to the degree of parliamentary scrutiny and discussion which is appropriate to primary legislation. However, we identified certain problems about what was proposed.
First, it might be difficult to pass such legislation with the necessary urgency when Parliament was in recess, and it would be impossible to introduce it at all during the period between the dissolution of one Parliament and the first Queen's Speech in the next. Secondly, it might be very difficult for the Secretary of State to explain and justify to Parliament and for Members of both Houses of Parliament to be properly satisfied about the reasons why the legislation was required without incurring the risk of endangering the success of an ongoing counterterrorist operation or of prejudicing the possibility of a fair trial for someone charged with a terrorist offence.
We feared that those difficulties might be so great that a Secretary of State might be obliged to conclude that it was preferable to run the risk of not extending the period of detention without charge rather than to introduce legislation to provide the necessary powers, whatever the potential consequences of that choice might be. We therefore concluded that the Government's draft Bills did not offer a satisfactory solution to the problem, and recommended that this Bill should create a power for the Secretary of State to make an executive order at any time—not just during a period when one Parliament had been dissolved and the new Parliament had not yet started work—if there was real need to do so.
We recommended that the purpose of such an executive order should be to extend the maximum period for pre-charge detention to 28 days in exceptional circumstances, and that it should expire in three months. We made recommendations to suggest in detail: how to ensure that such an order would be made only in truly exceptional circumstances; how the exercise of the power should be made subject to mandatory review by the independent reviewer of terrorism legislation; how it should be subject to rigorous safeguards and to judicial review; and how it could be made subject, eventually, to parliamentary scrutiny.
The Government have, I am glad to say, accepted many of the Joint Committee's other recommendations, and will introduce amendments to that effect, but they have accepted the committee's main recommendation only in part. Clause 58 would provide the Secretary of State with power to make a temporary extension order when Parliament is dissolved or when Parliament has met after a dissolution but the first Queen's Speech has not taken place, but not at any other time.
I appreciate and respect the Government's wish to ensure that extensions of detention without charge beyond 14 days are as rare as possible. The committee asked the Secretary of State, when she came to give evidence to us, about the difficulties of presenting emergency legislation, to which I have already referred. We admired the confidence with which she assured us that she thought that she would be able to find a way to steer through or around those difficulties in presenting emergency legislation if necessary.
I remain of the view, however, that when the time came, she or a successor Secretary of State might find those difficulties to be insurmountable. She might, despite any advice to the contrary from the police or the Director of Public Prosecutions, decide that it was ineluctably necessary to take the risk of not introducing emergency legislation. No Secretary of State should be forced into a position where such a decision is forced on her.
If the Bill receives a Second Reading today, I hope at a later stage to put forward for your Lordships’ consideration an amendment to Clause 58 that would allow the Secretary of State to introduce emergency legislation for an extension of detention without charge when Parliament is sitting if she thinks that she can safely and properly do so, but would give her the option of making an executive order under Clause 58 if she thinks, even when Parliament is sitting, that the introduction of primary legislation would in the then prevailing circumstances be too difficult.
I hope for her sake and for all our sakes that she is never called upon to make that choice, but better safe than sorry.
Baroness Doocey
My Lords, I focus my remarks on aspects of the Bill relating to policing matters. I declare an interest as a member of the Metropolitan Police Authority.
I begin by expressing concern about the proposals in the Bill regarding the regulation of biometric data, particularly the DNA database. DNA profiling is critical to the successful investigation of crime, particularly in cases of serious violence and sexually motivated crime where the perpetrator is a stranger to the victim. At the same time, the blanket and indiscriminate retention of DNA profiles is wrong, as the recent judgment in the European Court of Human Rights made clear.
There are some very welcome provisions in this Bill: the intention to put the National DNA Database and the National DNA Database strategy board on a statutory footing; the destruction of DNA samples within six months; the assurance that the DNA profiles of those found not guilty of an offence will in future not be loaded on to the database; and the deletion of existing DNA profiles of those who have been found not guilty of an offence.
However, there remain some concerns and areas that I believe could be improved. I have a particular concern regarding the complexity of the new retention regime for biometric data. We need a regulatory system that is robust and which enjoys public confidence, but we do not need one that is excessively burdensome. Deciding how long to retain DNA profiles is a complex business. The retention periods stated in the Bill are not fixed, but are subject to complex decision-making—for example, the provision for the biometrics commissioner to extend the retention period by two years in certain circumstances. While not every profile will need to be assessed, it is unlikely that it will be possible to automate the process of deletion as a result of this provision. The administrative burden on the Metropolitan Police service—and indeed other police services—is likely to be significant. The Metropolitan Police estimates the initial cost of implementing the Bill at £2.5 million plus ongoing costs of £500,000.
There is also an operational risk inherent in the complexity of the retention regime. No system is perfect and, if the deletion process is out of sync and is not carried out at the appropriate time, there is a real risk of “illegal” matches that could connect someone with a serious crime such as rape but then could not be used. The police must not be put in the invidious position of identifying a rapist or murderer but being unable to use the DNA match in evidence.
A further concern in this section is about the regulation of the counterterrorism DNA database. Given the proposals within the Bill to strengthen the oversight and governance of the National DNA Database, for the sake of consistency, similar moves should be made in respect of all police databases relating to DNA and other biometric materials, including the counterterrorism DNA database.
We should also consider Schedule 7 to the Terrorism Act 2000 and how this Bill relates to it. At present, the police may obtain DNA profile data and fingerprints from people stopped under Schedule 7. However, there is a need for clarity regarding the treatment of these data. The proportion of people stopped under Schedule 7 who have their DNA and fingerprints taken is low, but Schedule 7 gives the police very considerable power. An examining officer may exercise his powers,
“whether or not he has grounds for suspecting”.
There is consequently a need for clarity and transparency regarding where this biometric data information is then stored, and if it is subject to the same safeguards governing DNA taken from an individual on arrest.
I will refer briefly to the question of closed circuit television and automatic number plate recognition, included in Part 2 of the Bill. The regulatory framework proposed in the Bill is a positive step. However, the code should specifically address the covert use of both automatic number plate recognition and CCTV. The Minister in his opening remarks referred to Project Champion, which is a very good example of how ill thought through proposals and a lack of engagement and consultation can undermine confidence in policing. We also need clarity as to whether the responsibilities of the proposed Surveillance Camera Commissioner could be undertaken by the existing Chief Surveillance Commissioner. When we move to Committee stage, I shall be seeking to return to some of these issues.
Lord Lucas
My Lords, I like this Bill. There is a lot of it that I shall take a deep interest in as it goes through. I am sure my noble friend is well aware of my interest in the Regulation of Investigatory Powers Act, freedom of information and vehicles left on land but all those have been very well covered by others. I should make a quick declaration: a proportion of my DNA is on the national database—probably enough to identify me—and there is a clause in the freedom of information sections which will resolve various disputes I have with various universities in my favour. So I shall be careful when we come to that.
I want to concentrate on the section on biometrics in schools. This section is a daffy overreaction. Biometric systems are very widely used in schools. They have great benefits and I am not aware of any instance of serious problems with them. They improve safety. They mean that you know where the kids are, and in some schools that is very important. They improve privacy, because you can no longer tell who is claiming free school meals, and that generally results in a large uptake of free school meals. They greatly improve efficiency, because you no longer have to divert teachers to supervisory jobs which are done quickly and efficiently. Kids are used to it, because a lot of the systems that they are familiar with incorporate biometric systems.
The Explanatory Memorandum talks about risks as if they have been established, but I have not seen anybody create a scenario where there is a believable, practical risk to the kids in any way at all. We are dealing here not with something that is available nationally but with a closed system, a community that is using this data within itself—which we do here. All of us are subject to a highly sophisticated biometric scanning device every day: they are called doorkeepers. They do not scare us, and they are not a danger to us. The fact that they recognise us without difficulty is not something that gives rise to problems.
Within a closed community, the fears that people have on the wider scale do not apply. It is as if we put exclusion zones around hospitals that were using nuclear medicine, in case something exploded. It is just not real. It is an association of words which has been got up by the Daily Mail, of course—that lover of freedom, that respecter of privacy, that hater of intrusion—because it made a good story and it scared people. I am very sorry that both our beloved parties took it seriously and have stuck something in the coalition agreement which I suspect to some extent means that we have to keep it in the Bill. But I very much hope that we will be able to get some amendments through which will avoid or at least reduce the waste of resources which will result from the Bill as it is at the moment, and the increase in the incidents of bullying which will result if we cannot use this system consistently, particularly where free school meals are concerned. It gives me some pleasure that the Daily Mail, that scourge of government waste, is setting out to increase it, but I hope to save them from their own excesses.
Lord Harris of Haringey
My Lords, I declare an interest as a member of the Metropolitan Police Authority. I fear I may be spoiling the consensus that seems to have emerged as to what a wonderful Bill this is. This is a very grandiosely entitled Bill: “Protection of Freedoms”, no less. I am sure that when the title was chosen the Deputy Prime Minister had visions that, like the authors of the Magna Carta, seven centuries on, his creature would still be seen as a cornerstone of British liberties.
Frankly, he can dream on. This Bill is a mish-mash of ill-sorted provisions, a mish-mash without any overarching or underpinning philosophy and, worst of all, a mish-mash that will bring about unintended and damaging consequences. Balancing the civil liberties of the individual against the security of the state and the protection of the lives and well-being of other individuals is never an easy task and I wish that I could be confident that that balance has been appropriately struck in this Bill. Let us take, for example, Part 5, which makes major changes to the Safeguarding Vulnerable Groups Act. The noble Baroness, Lady Walmsley, who is not in her place, will remember the time spent in this House trying to ensure that children and vulnerable adults were properly protected against those who might harm them.
When we hear from organisations, such as Fair Play for Children, that this Bill introduces,
“elements of serious risk to children”,
we need to consider the points with very great care. The Government say that the arrangements under the 2006 Act were too complicated and onerous for those who had to implement them. Yet the people who will have to implement this Bill say that its provisions do not reduce or simplify the current system and that it runs the risk of sowing considerable confusion and unnecessary complexity.
There is no evidential basis for these changes. There is to be no pilot and what is being done throws away the broad cross-party consensus on which the previous legislation was based. A major concern lies in the proposed definition of what constitutes supervision in respect of affected activities. This remains worryingly vague. One suggestion is that the definition of supervision should be “line of sight”. This is so vague as to be frankly laughable and out of touch with daily realities. If the activity stays in one or perhaps two rooms and there are two staff or supervisors to monitor all volunteers, perhaps that would be possible. But in a multi-feature environment where there is outdoor activity, and in many other situations, it will be next to impossible for many organisations to provide that level of supervision. It will result in increased costs and/or a restricted number of activities, and, no doubt, fewer volunteers involved and fewer children benefiting.
In any event, supervision misses the point. The supervised activities of a volunteer are one thing but it is precisely during those activities that the trust of the child with that individual is created. It is that trust that makes possible unsupervised contact and the risks that that brings with that trust being exploited and betrayed. Of course, the risk of such exploitation and betrayal taking place during supervised activities can be reduced by good supervision. But what of the contact outside the supervised activity? The child now trusts that adult because they have encountered them in the supervised activity. But that trust is where the potential for abuse is created outside that secure environment.
That is an example of where the balance is being struck wrongly. It is based on the false belief that the bureaucracy involved is stifling volunteering. Fair Play for Children surveyed its member groups and found that more than half believe that the existing vetting arrangements have improved their overall practice. In only one instance in 200 did a group report that the arrangements had made it more difficult to recruit volunteers. Most parents will say that when they hand over their children they want the reassurance that the adults who their children will encounter have been properly vetted. Do the Government really want to put the rights of the potential paedophile above those of the child? That is just one part of an ill-thought-out Bill.
Part 4 reduces the maximum period of pre-charge detention for terrorist suspects from 28 to 14 days. The periods of detention longer than 14 days have been used extremely sparingly and are subject to judicial approval, which has not always been given. The Government, moreover, acknowledge that sometimes a longer period—up to 28 days—may be necessary, presumably because of the nature and complexity of some counterterrorism investigations.
If circumstances require it, it is proposed that the Home Secretary comes to Parliament to introduce emergency legislation to reinstate the longer detention power. That has to be nonsense. It means that during—I repeat, during—a terrorism investigation, the police and security services may have to ask Parliament to be recalled to debate an issue that it cannot discuss without prejudicing a future trial. The remarks made by the noble Lord, Lord Armstrong, are extremely pertinent on this point. Ministers recognise that 28 days may be necessary to investigate or avert a serious terrorist threat, but none the less intend to remove the power, even though there is no evidence that the power has ever been misused.
Part 2 adds to police bureaucracy, which is another example of extra expenditure being incurred as a result of pressure from the Daily Mail. It will make it more difficult for the police and local authorities to use CCTV to prevent and detect crime. This no doubt reflects concerns about a surveillance society, although when I was a local government leader my experience was that communities always—I repeat, always—welcomed the introduction of new CCTV schemes. If that concern about a surveillance society was so important, why are there no restrictions on the use of private CCTV cameras? I do not want to labour the point, but this oh-so-cleverly-worked-out Bill makes it more difficult and more expensive for our already overstretched police service to prevent crime but does nothing to restrict the proliferation of privatised surveillance.
Finally, Part 1 restricts the retention of DNA samples and profiles taken during a criminal investigation. This will make it harder, not easier, for the police to catch and convict dangerous criminals. The Home Office’s own research produced last year contradicts what this Bill will do. It showed that, each year, 23,000 people who will be taken off the database under these proposals will go on to commit further offences. Of these, 6,000 will commit serious crimes, including rape and murder.
Whose civil liberties are we protecting here? It will certainly not be those of anyone like Sally Anne Bowman who was 18 when she was murdered close to her home in south London in 2005. The police investigation initially drew a blank. But a year later, Mark Dixie, a pub chef, was arrested following a brawl in the pub where he worked. No further action was taken for that pub brawl but his DNA was taken and subsequently loaded on the database. It produced a match to the DNA evidence retrieved from the murder victim and within five hours he was under arrest. He was subsequently charged, convicted and sentenced to life imprisonment. So what are we doing removing the ability to protect people like Sally Anne Bowman? There are plenty of other such examples.
This Bill repeatedly gets the balance wrong. Of course, we should protect freedom. But why is it that the only freedoms that this Bill seems to care about are the freedoms of the would-be terrorist, the manipulative paedophile and the serial rapist?
Lord Addington
My Lords, following the noble Lord, Lord Harris, is reassuring because I feel that we have had agreement breaking out all over the place. The noble Lord says that the word “protection” is bad in the Title of a Bill. In my opinion, the word “prevention” is equally bad. Both words have been open to abuse and hyperbole over the years.
However, I wish to talk about Part 5 on which we have limited agreement. As we have already heard, this being a late-night debate, two people who were mentioned are not in their places. We have heard that sporting bodies are a little concerned about the changes in CRB checks and assessments. To sum up, primarily, Clause 79 suggests that the centralised checking that has taken place, which sporting bodies quite like and have got used to, will not be done electronically any more. The RFU is very concerned about that.
As regards freedom and protection, people are using arguments against these incredibly important principles, such as, “This way we can do it and we will have something which is easy to use”. In addition, if you are dealing with a small amateur club environment, personal relationships are incredibly important. Indeed, small amateur clubs die frequently because they break down. If testing comes to you, it will be easier to implement. If you have to provide the testing yourself, for how long can you stall it? I do not know. How long have we stalled handing over anything? Things get lost in the post and do not arrive and that will make things difficult for those who have to take an opinion.
The Government do not need to be very worried about it because there have been hints in another place; my honourable friend Lynne Featherstone said that they are looking at it. Perhaps in response, my noble friend would explain that thinking to the House. This is a practical point relating to large amateur groups which deliver much that is good in our society. How will we deal with it? How can we ensure that protections are in place?
The second point in the same vein is provided in Clause 64, but I think that sporting bodies should consider Clauses 65 and 66 as well. They relate to children and vulnerable adults. In regard to those last two clauses, we must remember that vulnerable adults get involved in sports, and the inclusion of people with learning disabilities in the Olympic movement provides a clear guide to that. The noble Lord, Lord Harris, suggested that people in secondary coaching roles might not be checked.
I turn to my own sport, rugby. It is a technical sport that requires special movements. People will be placed in positions of control, trust and authority. If you are a forwards coach, and your head coach is someone who is predominantly a back, you will require people to engage in very technical activities, involving moving your body and other people’s bodies around a rugby pitch, accompanied by bumps, thumps and groans. Such coaches will be in a position of authority and power and sometimes the junior person is not checked but will be in charge of a session and will control most of it. Other sports, such a cricket, will have similar arrangements. However, I will not talk further about cricket as my noble friend Lady Heyhoe Flint is in her place. All sports have different technicalities. I suggest that such people in incredibly important and controlling positions should be removed. Maybe we should look at that again.
I do not think these matters should wreck the Bill, but sporting bodies would appreciate some changes to make them work better and to make them cheaper and less bureaucratic. I look forward to hearing from my noble friend how such matters can be put into the Bill. I do not think they are deal breakers, but they would help people who take on the kind of work which sums up the idea of a big society perfectly.
Baroness Berridge
My Lords, I believe that there is an irony in the Title of the Bill. The Government are introducing a piece of legislation to protect freedoms which, to a significant extent, have been infringed by their actions. Like many unscientific people, I marvel at the advances in DNA and its role in crime detection, but I am pleased that many of the controversies surrounding the DNA database are dealt with by this legislation. I wish to speak briefly to the principles of Part 1 of the Bill, the nature of DNA material and the impact on communities.
Deeply embedded, not only in our constitution but in the conscience of citizens, is the principle that you are innocent until you are proven guilty. The corollary of this presumption is that citizens can go about their daily lives free from the unwarranted intrusion of the state or, as the European Convention on Human Rights and Fundamental Freedoms expresses it positively under Article 8, the right to respect for their “private and family life”.
At a time when the European Court of Human Rights has come in for quite a drumming, it is sobering to reflect that England and Wales needed to be told by the court that the blanket and indiscriminate retention of genetic material indefinitely of innocent people is a breach of Article 8. I am embarrassed that an 11 year- old British child was one of the applicants in the case of S and Marper v United Kingdom. How did the country of ancient liberties and the Magna Carta come to this?
I welcome Part 1 of the Bill, which at long last puts the national DNA database on a statutory footing. Further, the introduction of a nationwide framework for the destruction or retention of genetic material should mean a consistent approach to this issue in future. The Bill brings to an end the inevitable police authority postcode lottery, when the matter was left to the discretion of individual chief officers. Of course, once an offender is convicted, the issue is very different but, from my reading of the Bill, is it really proportionate that an 18 year-old who is convicted of drunkenness or driving without due care and attention should have their DNA profile retained indefinitely by the state? How is such a situation in line with the spirit of the Rehabilitation of Offenders Act? Is there not a point at which, if someone is in no further trouble, the profile is removed?
Secondly, I turn to the nature of the material. “If you are innocent, why worry about being on a database?”, has been the response of some of the tabloid press and even the Home Office under the previous Government. Apart from the fact that we live in a free country, DNA samples degrade over time. Samples do not merely identify you, like fingerprints or the DNA profile; DNA samples are you. Therefore it is valuable material, especially in unscrupulous hands. I welcome the introduction of a strict regime to deal with the destruction of DNA samples because, although I am not a pessimist, not long ago, the names, addresses, and bank details of 7.25 million families in receipt of child benefit were downloaded on to disks, put on a courier bike and never seen again. I did feel for the then Chancellor, just like I felt for Bob Quick who walked into Downing Street with highly classified information on public display. It is easily done.
I hope these serious but rare examples explain why I have been ill at ease with the thought of DNA samples stored somewhere instead of being destroyed. Also I was troubled to read in the report of the Joint Committee on Human Rights, of which I am now privileged to be a member, of the practical difficulties—or perhaps insuperable obstacles—in the destruction of innocent people's DNA profiles. Apparently innocent and guilty people’s DNA samples are held in groupings that are now difficult to separate. To avoid the misuse of these innocent profiles in the future, I hope that the Minister will be able to assure your Lordships’ House that the Bill will result in the destruction of DNA profiles, and not merely the deletion of the connection between the DNA profile and the identity of the person whose profile it is. Further, I urge the Minister to have a strict timetable under Clause 25 for the destruction of existing biometric material, although I understand that there are resource implications.
Finally, I move to the effect on particular communities. In 2007, the Home Affairs Select Committee concluded in its report, Young Black People and the Criminal Justice System, that:
“A larger proportion of innocent young black people will be held on the database than for other ethnicities given the small number of arrests which lead to convictions and the high arrest rate of young black people relative to young people of other ethnicities”.
I understand that you are three times more likely to be arrested if you are a young black man than your white counterparts. The noble and learned Baroness, Lady Scotland, in giving evidence to the Home Affairs Select Committee, predicted that soon three-quarters of young black men would be on the DNA database. According to the Human Genetics Commission, this prediction came true in November 2009. By the end of last year, just over 500,000 black people in England and Wales were on the DNA database. Not only is this a travesty, but it is hard not to believe the anecdotal evidence, supported sometimes by former senior police officers, that the power of arrest has on occasion been used merely to obtain DNA. Against this background, I ask the Minister to consider whether the commissioner should have a defined role in monitoring the ethnic profiles of people on the database.
How did the country of ancient liberties and the Magna Carta come to this? It is not a rhetorical question. Infringements on citizens’ liberties often must occur when public safety is at risk. But people, and Governments, often overreact to a threat to their safety. That is why your Lordships’ House had to prevent the introduction of excessive detention periods. Even if DNA techniques were like “CSI: Miami”, the state keeping the DNA of 1 million innocent people would still be an overreaction. I welcome this Bill.
Baroness O'Loan
My Lords, there is much to be welcomed in the Protection of Freedoms Bill. Issues such as the modification of the rules relating to powers of entry and the new rules on biometric material, including the requirements for the destruction of certain DNA samples, are important. As one who has had responsibility in the past for the destruction of DNA samples, I would ask the Government whether there is an intention to provide also for the destruction of the records which relate to those samples, because we discovered that this was an adjacent need.
I welcome the disregarding of convictions under Part 5, Chapter 4. I share the concerns articulated by the noble Baronesses, Lady Hamwee and Lady O’Neill, and the noble Lord, Lord Bew, in relation to Clause 100 and the freedom of information provisions for data sets.
I would like to endorse the many comments that have been made in relation to the protection of children under Part 5. There are concerns about the extent to which existing protections for children may be reduced by the exclusion of volunteers working, for example, in classrooms, sporting organisations and other supervised groups where the contact may be frequent and ongoing. Those are very important contacts because they help children, but they can also be used by abusers to build a relationship which may result in harm to children. The question that I have been asked is whether the proposed arrangements will, for example, permit an adult who has been barred from taking up a regulated post to volunteer for an unregulated activity? Are the Government satisfied that the proposed arrangements, which would place an individual on a barred list only if they have been, will be or are likely to be engaged in regulated activity, adequate? Will the result of this be that concerns about those not in regulated activity cannot be shared with the ISA?
The second area to which I wish to draw your Lordships’ attention relates to Part 2. The Regulation of Investigatory Powers Act deals with a range of investigatory techniques, including interception of communications, access to communications data, directed surveillance and intrusive surveillance, such as placing bugs in homes and cars. These techniques are widely used by a range of bodies.
I welcome the introduction of Clauses 29 and 34, providing for a code of practice for the development and use of surveillance camera systems and the creation of the Office of Surveillance Commissioners. The commissioner will have the responsibility to encourage compliance with the new camera code, review the operation of the code and provide advice about it. However, that is a very limited remit. There appears to be no provision for complaints about inappropriate use of surveillance cameras. There is currently an investigatory powers tribunal that deals with complaints under the Regulation of Investigatory Powers Act. It has received 1,120 complaints in 10 years and has upheld only 10. Five of the 10 were upheld in 2010 in respect of members of one family who complained about unlawful surveillance by a local authority. In only six other cases in 10 years has surveillance been found by the tribunal to be unnecessary or disproportionate. This is in the context of some 2.7 million surveillance decisions.
Clause 37 is an attempt to regulate the use by local authorities of surveillance powers by requiring the authority to seek judicial consent for such activity. The Minister articulated the disproportionate use of such powers in his opening address. It is right that there should be a requirement for judicial authorisation. It has been suggested that the police and other public authorities should be subject to a similar control mechanism following the revelations of very long-term surveillance by the police in the context of public protests and campaigns.
Clause 37 gives the Secretary of State power by order to require judicial authorisation for surveillance by other public authorities. The Regulation of Investigatory Powers Act already requires a complex process for authorisation and discontinuance of the use of directed surveillance. There is a very significant problem that lies not in the authorisation process, which requires significant thought, process and decision-making both to initiate and terminate surveillance activity, but in the mechanism created under RIPA for the regulation of surveillance activities. That process was described by the president of ACPO as,
“no longer sufficient to secure the confidence of right thinking people that such interference with citizens' rights (with its foreseeable collateral intrusion on many) is appropriate”.
There is a risk that when Parliament creates regulatory structures, it assumes that the job is being done. That is perfectly legitimate. However, changing circumstances may create an environment in which regulation becomes ineffective.
I will leave aside the operation of the Interception of Communications Commissioner and the Intelligence Services Commissioner. However, I will refer to the regulation of police activities that are overseen by the Office of the Surveillance Commissioner. The office comprises 26 people, including administration and support staff. They regulate, on an annual basis, the activities of some 60 organisations, including all police forces. On a biannual basis they examine some 25 organisations, and on a triannual basis they examine a further dozen authorities and more than 430 local authorities in England, Scotland and Wales. They are responsible for at least 500 organisations, some of which employ tens of thousands of people and have used RIPA powers on millions of occasions over the past 10 years.
The effective use of specified investigatory powers is critical to the fight against serious and organised crime. These powers have enabled some of the great triumphs of policing. Surveillance is a profoundly important tool. Properly used, it can result in the prevention and destruction of criminal activity, and the successful investigation leading to prosecution of crimes such as drug and people trafficking, money laundering and murder. The specific nature of the techniques and processes are rightly protected. However, because of the nature of the powers and the work in which officers engage when using them, there is international recognition of the risk of the corruption of those officers.
The regulatory process, among others, must be capable of acting as a check to the potential for such corruption, with all its attendant risks, by auditing the use of regulated techniques. I have seen situations in which RIPA was not complied with, despite the existence of extensive police command structures and the Office of the Surveillance Commissioner and its inspectors, resulting in the ongoing commission of serious crime by those being paid as informants by the state. In his annual report for 2010-11, the Chief Surveillance Commissioner indicated clearly that he had concerns about how the system was operating. He stated:
“I have commented in previous reports that there appears to be an over-reliance on the capacity of the OSC to examine authorisations. I remain concerned that my limited capacity is misappreciated ... My inspection capability is limited. The sample of documents which can be examined is small and the inspection can only be regarded as a ‘snapshot in time’; it is not an indicator of trends … In order to achieve a reduced budget for the financial year 2011-12 I have reluctantly reduced by capacity by one Inspector”.
He had seven inspectors to do all these inspections. Now he has one fewer. He has also reduced the secretary post and downgraded a further post. He states:
“My capacity has always been limited and I wrote to the Home Secretary to explain the impact of reducing my budget ... I recognise the severity of the country's financial situation but a reduction of nine percent has serious operational repercussions in a tiny organisation”.
This organisation has responsibility for protecting the freedoms of people in this country. The Bill presents an opportunity to address these issues.
I suppose my question is, “Must we wait until there is another scandal, as there inevitably will be?”. I would like to endorse the suggestion of the noble Baroness, Lady Doocey, that it would be possible to place the office of Surveillance Commissioners and the Commissioner for the Retention and Use of Biometric Material in the Office of Surveillance Commissioners, thereby avoiding the creation of two new quangos in a term in which we are dealing with the Public Bodies Bill and also ensuring the economies of shared services. Could the Government also make a decision to review the office of the OSC and of the Investigatory Powers Tribunal and in the interim to enhance the budget, so that these regulatory processes will more effectively enable the ongoing protection of the country?
Baroness Heyhoe Flint
My Lords, at the risk of sounding like Little Miss Echo to my noble friend Lord Addington, my interest in the Bill centres on the impact it will have on the sports sector, particularly the work undertaken by national governing bodies of sport, NGBs, to ensure that all participants in sport are given a safe environment in which to play and administer, especially where a vast number of amateurs and volunteers are concerned.
First, I declare my interests as a board member of the England and Wales Cricket Board, an honorary life president of the Lady Taverners, who assist youngsters with special needs to give them a sporting chance, a vice president of Wolverhampton Wanderers Football Club—13th in the Premiership—and trustee of Wolves Community Charitable Trust.
NGBs such as the England and Wales Cricket Board and the Football Association have the duty to promote and regulate sporting activity in a structured environment. One of the duties they take extremely seriously is the welfare of those who participate in sport. We need to send out a message to parents that their children will be well looked after when they are involved at sports clubs or in other forms of leisure and sporting activity. I therefore support the Government’s work to safeguard vulnerable groups and the reforms set out in the Bill, such as the introduction of portable criminal record checks, which will make life easier for governing bodies which undertake a huge number of checks each year on their employees and volunteers.
I have two concerns, which I know are shared by many on all sides of this House, not least the right reverend Prelate the Bishop of Bristol. Concern number one is that Clause 79, on the disclosure of information, has the specific intent to remove the requirement that a person must send a copy of their CRB to a national governing body. Concern number two is that Clause 64, on the definition of regulated activity, aims to reduce the number of individuals who are regulated by excluding those who are subject to day-to-day supervision. The ECB, for example, currently processes vetting checks on all in cricket who work with children, whether these are individual coaches coming from overseas for the summer or long-term volunteers in their sporting community. More than 85,000 people have been checked by the ECB since 2003, when checks were first introduced. As the noble Baroness, Lady Dean, has noted, the Football Association does 35,000 checks a year.
Those who manage these vetting arrangements at the ECB and at other sporting bodies tell me that the changes proposed in the Bill increase the risk of dangerous individuals coming into contact with children. The proposed changes would therefore mean that registered bodies would be denied access to relevant information about all individuals who could pose a risk to children. Bodies such as the ECB currently manage disclosure content centrally with experienced and trained staff, ensuring consistency of decisions across the game. Obviously, the average club-level volunteer does not have such expertise. If, in future, an individual has to show their disclosure to their local sports club rather than to the governing body, there will be two problems. First, someone may have to show that they have a criminal record to their immediate peer group, undermining their privacy and possibly increasing the chances of collusion or of falsifying forms. Secondly, training will need to be provided to local club volunteers on how to handle disclosure content, which will increase burdens on volunteers at a local level and will mean extra costs to NGBs centrally to develop and run this training, thus creating a costly and time-consuming level of bureaucracy. All this would be unnecessary if the governing bodies received copies of the disclosure directly, which is what happens now.
The informal nature of volunteering in sport presents opportunities for individuals to withhold information. As a consequence, it is those types of individuals who pose the greatest risk to children and are likely to be manipulative in their behaviour, yet could still integrate into the club. It is surely not right that those who volunteer in sport, doing so no doubt because they love that sport, suddenly have a working responsibility to become experts on criminal record checking procedures.
Clause 64 amends the Safeguarding Vulnerable Groups Act 2006 by narrowing the definition of regulated activity, as my noble friend Lady Walmsley mentioned. Crucially, this would exclude any role fulfilled while subject to the,
“day to day supervision of another person who is engaging in regulated activity relating to children”.
The proposed changes mean that an individual who has been barred would not be prevented from working with children in a supervised role—for example, as an assistant coach at a cricket club, provided that another supervising adult such as a head coach was present, because that assistant coach will no longer be liable to a full criminal record check.
With respect, the new arrangement fails to understand the way in which sports clubs are run. The House needs to note that, for example, many sports coaches, club minibus drivers and match organisers in a sports club could be considered as assistants if the club has a head coach, but unless the head coach were working alongside every volunteer assistant at every session it would be wrong to classify these people as assistants. I ask the Minister to consider how a sports club is to interpret the concept of supervision when on summer or winter evenings successful cricket clubs and junior football clubs may have hundreds of children being coached across a spread of sports fields and pitches. Does the head coach actually spread himself or herself to supervise every one of these sessions and all the volunteer assistants involved? That is an unfair burden to place on the sports club and one that may deter volunteering as well as reduce protection.
I hope that these concerns are well understood. My request at this stage of the Bill is that perhaps the Minister may agree to meet a delegation on this issue, including national governing bodies of sport, the Sport and Recreation Alliance and even Girl Guiding UK, which has also contacted me. I humbly suggest that just small amendments to the otherwise excellent Bill would uphold the protections that this House, the Government and all sports bodies and organisations want to see applied in order to safeguard potentially vulnerable groups of sport-loving youngsters.
Lord Kennedy of Southwark
My Lords, it is fair to say that the Protection of Freedoms Bill contains interesting as well as worrying proposals. Many of the proposals are welcome and noble Lords on these Benches give them their full support. There are, however, other aspects of the Bill that are worrying and we on these Benches will have to oppose them.
The title of the Bill is a bit over the top if you look at the subjects contained in it. They are a collection of issues that do not necessarily fit very well together. Maybe that is why the Bill has a rather grandiose title but not so grandiose items. In some cases, the Bill contains some very risky proposals.
I have the greatest concern about the proposals concerning DNA. When my right honourable friend Alan Johnson was Home Secretary, he brought forward legislation providing for essential safeguards regarding the use and retention of DNA. These are serious matters and we should seek to achieve a sensible balance. I believe that we had that balance, but now the Minister is taking risks with our freedoms in his proposals regarding DNA. What evidence does he have to make these changes in respect of the retention of DNA samples?
Can the Minister also direct some of his remarks to the number of people who have been caught committing serious offences only because their DNA sample was on the database? Under these proposals, the DNA evidence would never have been there. Kensley Larrier, Lee Ainsby and Abdul Azad have all been convicted of the offence of rape, using DNA evidence held on the database. If these proposals had been law at the time that they committed their offence, the evidence that convicted them would not have been available. They would have been free to carry on committing further offences. How is that protecting our freedoms?
Government have a duty to protect their citizens. These proposals weaken their ability to do so. They are wrong, they are risky and they should be opposed. Parts of the Bill, as I said previously, are very welcome. Proposals regarding the express parental consent for the use of children’s fingerprints are welcome. Other proposals, such as those to deal with rogue wheel clampers, making it a criminal offence for cowboy clampers to immobilise, move or restrict the movement of a vehicle without lawful authority, are also welcome and merit considerable support around the House. They are welcomed by the motorists who have had to suffer at the hands of these rogues for far too long.
I am disappointed that the Government have chosen not to deal with the issue of ticketing in this respect, as my noble friend Lady Royall outlined earlier. I hope that noble Lords can persuade the Government that this is an issue that they need to address during the passage of this Bill through the House.
I also welcome the proposals in the Bill to provide a scheme to deal with convictions for consensual sex between men above the age of consent. These proposals have been too long in coming. The Government are right and they should be congratulated on putting these proposals forward.
As my noble friend Lady Royall said, the August riots gave us a timely reminder of the benefits of CCTV. It is an important tool in the fight against crime and it is disappointing that proposals from the Government may make this more difficult. I hope that any code is as light a touch as possible, but it seems odd to me that these provisions will not apply to all. I hope that the Government will keep that under review.
Like many noble Lords, I welcome the proposals regarding freedom of information. I am a big supporter of freedom of information legislation, and proposals to increase its scope and deepen it further will always have my support.
My final comments are around the issues of the detention of terrorist suspects and the proposals for detention periods of 14 days and 28 days. If we can all accept that 14 days should be the norm, where we may differ is how we get to 28 days in exceptional circumstances. There are many noble and learned Lords in your Lordships’ House, and I hope that they in particular will be able to give the Government timely advice on how to proceed carefully in this area.
In conclusion there is a lot that I can welcome in this Bill, but there are some really dangerous, misguided aspects in it. I hope that your Lordships’ House will be able to persuade the Government that they need to think about them again.
Baroness Randerson
My Lords, I strongly support the spirit that unites this wide-ranging Bill. This evening it has been called a Christmas pie and a mishmash. Whichever view you take of it, it certainly covers a great deal of ground. We have had a debate which has touched on virtually every aspect of this Bill and heard some very important points from all sides. I am delighted that there is so much agreement on some parts of the Bill.
In the last 15 years or so, I believe that we have been sliding almost imperceptibly into a society where we take for granted that the state has the right to look into almost every corner of our lives. We take our liberties rather too much for granted in Britain. Because they have not been threatened in a wholesale way in the adult lifetime of almost all of us, we accept that those liberties are there. We have allowed them to be eroded on a piecemeal basis. We have not really noticed it happening, but if you add up one measure after another taken under the previous Government, in total it amounts to a considerable intrusion into our lives.
These steps were of course taken with the best of motives. It is a natural human reaction that when something terrible happens we all say that something must be done to stop it ever happening again. In the name of safety and security, the previous Government eroded the concept of innocent until proven guilty by retaining the DNA of over 1 million people who have not been found guilty of a crime just in case those samples might be useful in the future. They eroded the right to liberty by extending the period of pre-charge detention. They eroded our right to trial by jury. They eroded our right to live safely in our own homes by creating hundreds of new powers of entry so that there are now more than 1,200 separate, different and therefore confusing powers of entry. Significantly, nearly 500 of them were created by secondary legislation.
The previous Government also eroded trust by their plans to introduce the draconian vetting and barring system which would have forced 11 million adults to pay for registration in order to prove that they were not abusers of children. The key issue to me on this matter is that it deters volunteers. I contend that the benefits of community volunteering greatly outweigh the benefits of vetting and barring on the draconian scale assumed by the previous Government.
The previous Government eroded our right to walk peacefully along the streets by empowering the police to stop and search us without needing reasonable grounds for suspicion. The figures on this give a very worrying picture. In 2008-09, there were 210,000 stop and searches that led to only 1,245 arrests, and of them only nine were for terrorism. There has undoubtedly been considerable damage to community relations as a result of this broad-brush approach.
I said at the outset that these steps were taken with the best of motives. Our country faces new threats and challenges. Terrorism, although not new, is newly fierce among us, and there are the old threats, the old evils, that we have been too blind to in the past, such as paedophilia. In attempting to deal with these problems, it is important all the while to keep in mind that the response has to be proportionate. For example, the previous Government legislated to keep biometric data for as long as possible in case they might be useful one day. By spreading the net wider and wider they seemed to hope that they would legislate away crime.
There has been another factor at work, which is technology. Many of the developments that I am referring to—DNA samples, CCTV or the ability to create and interrogate vast databases—would not have been possible 25 years ago. There is a human tendency to feel that if the technology exists, we need to use it, but we have been in danger of making ourselves the slaves of technology, rather than its masters.
I shall briefly tell the story of a lady who was my constituent. She was elderly, frail, very timid and of exemplary good character. She came to see me following a traumatic experience. Her husband, who suffered from Alzheimer’s, had had a stroke, fallen over and hit his head. Following that accident, she was arrested by the police on suspicion of attempted murder. She came to see me after a very traumatic episode to complain not about the arrest but about the fact that they had kept her DNA. We went to see the chief police officer and asked for that DNA to be destroyed. The answer we got was that it would be highly unlikely that that could happen, even though it fulfilled one of the two criteria for the destruction of DNA samples, which is that there was no crime in the first place. A system that ensures that that lady’s DNA is kept in perpetuity is overwhelmingly draconian and needs to be put right.
There are details in the Bill that need questioning and interrogating, and I have concerns about one or two of its provisions—in particular, as some noble Lords have already mentioned, issues in relation to university research. I also wish to probe the Minister about the provisions in relation to CCTV cameras because I have come across two serious abuses of CCTV cameras, one on university property and one on National Assembly for Wales property, and I cannot see that they are covered by the Bill. I will be pursuing those issues in future, but I believe that, in general, this Bill is a proportionate response to the threats and problems of our society.
Baroness Grey-Thompson
My Lords, in this Second Reading I had considered raising in some detail the issue of parking infringements and ticketing, in Chapter 2 of Part 3 of the Bill, especially in relation to how the Bill may relate to the abuse of blue badge parking by large numbers of individuals. I believe that this abuse highlights something of wider concern, which is a widely held, negative attitude that is being directed towards disabled people. Perhaps, however, I will come back to this at a later stage.
Unsurprisingly, I have decided to keep my main comments at this stage to those parts of the Bill which could have a serious effect on British sport. I refer specifically to Part 5 of the Bill, on safeguarding vulnerable groups. I support the comments of the noble Baroness, Lady Dean of Thornton-le-Fylde, in calling for the correct balance for criminal record checks. As a volunteer in sport, I admit that I have felt a certain amount of frustration with the system in the past. Over the years, however, the system has improved greatly. At one point, I think that I held five separate CRB checks—one for a charity of which I was a trustee, where I did not actually meet any children. Therefore, I strongly welcome the sections on portability, which is very valuable.
As a mother whose daughter is involved in many sports, I like the reassurance that checks have been carried out on the volunteers who work with my daughter, and also that these checks have to be periodically updated. Sport currently has a robust framework in place for safeguarding children and it is well placed to determine who should be checked. Those involved also understand the huge risks to their sport of not protecting young people. It is essential that sport and recreation organisations have clear information about volunteers who pose a risk. Volunteers working in sporting environments have access to large numbers of children and vulnerable adults, and are in a trusted position. National governing bodies ask coaches, volunteers and officials to undertake regular continual professional development, and I see the safeguards and CRB checks as a part of that process. They have become an accepted part of being involved in sport.
I understand that one of the aims of the Government’s proposals is to protect individuals who may receive a certificate with inaccurate information. Since registration began in my own sport of athletics, only one check has been returned with a major error, displaying incorrectly that the individual had been barred from working with children. This error was corrected one day later by the Criminal Records Bureau. Athletics—I declare an interest, in that I sit on the board of UK Athletics—is a large sport with many thousands of volunteers. To put this into further context, last year approximately 7,000 checks were carried out through the centralised system. These were carried out by experts in the field. At present, only two individuals within UK Athletics are able to view criminal record disclosures. Clause 79, covering the disclosure of information, would seriously undermine the anonymity of the current system because the safeguarding team would have to chase copies of the disclosures.
The current system, which is centralised within the NGB, prevents the need for the volunteer to get involved. Withholding disclosures from the NGB would mean that the individual is flagged up to the NGB as not having returned their certificate, maybe unfairly, which could lead—again, unfairly—to suspicion. Those who we would not want to be working with children could delay a return of forms, thereby giving themselves longer access to children. The administration also has a financial cost which must be considered.
The provisions in the Bill put the onus on the individual—volunteers who often have many other commitments—to provide information to the national governing body. That could cause many difficulties. For the individuals who have to return the disclosures by post, there are further costs such as recorded delivery. For those who do not want to send their sensitive documents back by post, a volunteer at the club may have to view the disclosure. That puts other club volunteers in a difficult position, as has been well described by the noble Baroness, Lady Heyhoe Flint.
Without volunteers, British sport would not exist. I think virtually all the athletes I know who compete at GB level have been coached at some point in their career by volunteers. But sport also needs young people taking part in it, and parents need to feel a level of reassurance.
I also have some concerns over Clause 64, which narrows the definition of “regulated activity”. It makes an assumption that day-to-day supervision is enough, but I believe that the proposed changes mean that an individual who has been barred would not be prevented from working with children in a supervised role. The issue of “regulated activity” has been raised by many in your Lordships’ House, so I will not talk any more on this point now, but I agree that it places another unfair burden on yet other volunteers. I believe that it might be appropriate for all bodies in this sector to be granted an exemption from Clause 64(5).
I would like to ask the Minister for his reassurance that the protection of young people and vulnerable adults will be uppermost. The role of a coach or volunteer is hard to define. While a coach may say that they “just” spend several nights a week at a club, it is so much more than that. The coach can be a mentor, a friend, someone who challenges the young person to be the best they can or someone who sees you through the difficult teenage years—a confidant. My coaches were all of those. By their very nature, strong bonds are built. The coach is there to help a young person fulfil their dreams in sport. They hold a unique position in a young athlete’s life, and there is great potential for misuse of the role by those who wish to.
Finally, I would like to ensure that we have a system that is as simple as possible, and I would welcome further debate in this area. Record checks should protect coaches or volunteers from error, but they must also protect the children and vulnerable adults who are in sport.
Lord Rosser
My Lords, we have had a lengthy and interesting debate. With a Bill that covers a number of separate issues, it is not surprising that we have heard a number of thoughtful speeches that have concentrated on specific areas addressed in the Bill. These include the impact of Freedom of Information Act changes on universities and their research work, changes to the vetting and barring procedures, and DNA retention. We also heard a glowing testimonial to the last Government from the noble Lord, Lord Selsdon, although I had better add for the noble Lord’s sake that it related only to the specific issue of powers of entry.
This Bill, as my noble friend Lord Kennedy of Southwark said, has a somewhat grandiose title, but as Mr Edward Leigh, the Conservative Member of Parliament for Gainsborough, said in the other place in March this year:
“Compared with the Deputy Prime Minister’s rhetoric last year about bringing in a Bill to ‘protect our hard won liberties’, much of it is a bit tame”.—[Official Report, Commons, 1/3/11; col. 225.]
It is hardly a piece of legislation on a par, for example, with the Human Rights Act 1998, the Freedom of Information Act 2000, the Data Protection Act 1998 or the Race Relations (Amendment) Act 2000, all of which were enacted by the previous Government.
However, the Bill affects important issues and makes proposals involving change in a rather different climate from that which existed when some of the original legislation was passed in this House and the other place. My noble friend Lady Royall of Blaisdon went through the Bill in her speech and set out the parts with which we agree, those with which we disagree and areas where the Bill remains silent but which we think should be addressed. I do not intend to repeat all the points made by my noble friend but will concentrate my comments on particular aspects of the Bill.
The proposals for changes to the vetting and barring regime drawn up following the horrific Soham murders are a cause of concern, not because they make changes but because of the nature of the changes that they make. These were referred to by, among others, my noble friend Lady Dean of Thornton-le-Fylde. Under the Government’s Bill, it will be possible for people to spend time working with and in regular contact with children who will not have been subject to the barring arrangements. Such a situation could arise if the individuals concerned are meant to be being supervised by someone else to a greater or lesser degree. In this situation, it will not be possible to ascertain whether the Independent Safeguarding Authority had ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information on the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the independent authority may have come to, despite the fact that one would expect it to have some expertise in this area.
The objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person either as an employee or a paid volunteer in work with vulnerable people should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made. Serious and potential serious sexual offenders are all too often very determined and very good at covering their tracks and activities. It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety, particularly a vulnerable person or, in extreme cases, at the expense of their life.
The Government are proposing changes to the retention of DNA samples. In the light of reoffending rates and the benefits of preventing and solving crimes, the previous Government had already legislated for a six-year retention period for those who were not convicted. The then Opposition did not oppose the six-year retention period, no doubt because they accepted that a number of serious offenders, including murderers and rapists, were brought to justice after committing other crimes, because of DNA profiles. Yet this Government now propose to bring the retention period down to three years for an adult who is charged with, but not convicted of, a serious offence. We have not yet heard any convincing evidence that supports such a step, which will make it more difficult for the police to solve and prevent serious crimes.
Certainly the Government’s evidence is not convincing. Their proposal appears to reflect the Scottish model of a three-year limit. That was based on a report by an academic and seemed to be determined by a judgment of the appropriate balance and interpretation of an ECHR decision rather than empirical evidence. The Government have undertaken separate analysis of the Scottish model of DNA retention, and the results suggest that the earliest that offending risk in the charged group falls to the level present in a comparable general population is just over three years after the initial charge. That is based on a comparison of only the lowest-bound hazard curve for the charge group and the risk estimated for all individuals in the general population. It really is a case of being highly selective over the figure picked to try and provide backing for a predetermined point of view.
The six-year retention figure in the Crime and Security Act 2010 was based on extensive Home Office analysis on the length of time for which the offending risk of a group of individuals who might be subject to the retention policy is above the level observed in the general population, known as the hazard rate. The analysis suggested that within four years the hazard rate converges with that for the peak offending age group—males aged 16 to 20. The cohort converges with the general population only after a significantly greater number of years.
In its evidence to the Commons Public Bill Committee in March this year, ACPO stated that,
“we felt that the Crime and Security Act 2010 represented fair balance and was evidence-led, in that there was a body of research around how that measure would play out in protecting the public”.
ACPO went on to say that the Scottish model,
“does not appear to be evidence-led in the way it has been constructed”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 8.]
ACPO estimated that there would be a loss of about 1,000 matches per year under the changes proposed in the Bill. In other words, people currently brought to justice for serious offences because of DNA matches would escape justice and quite probably commit further serious offences. This is not an area where we should be taking chances by making a change based on less than convincing evidence.
In addition, in more than two-thirds of rape cases in which a suspect is arrested, there is no charge. Under this Bill, DNA will be kept where there is no charge in only very specific circumstances, so the DNA will be lost in most of these cases, even though, as the hard evidence shows, it can lead to a repeat offender being caught for this particularly unpleasant and violent sexual offence. Associated with this issue we also consider, as my noble friend Lady Royall of Blaisdon said, that a new clause should be added to the Bill to make a specific new offence of stalking. We shall be tabling an appropriate amendment in Committee to this effect. Stalking is currently covered by the offence of harassment, but the two are not the same and, to prove stalking, harassment also has to be established. There has been a change in Scotland where there is now a separate offence of stalking. The number of prosecutions for stalking is already this year some 10 times higher than the number of prosecutions when harassment was the offence that had to be proved.
The Bill addresses the issue of wheel-clamping and in particular the need to take action against rogue car clampers, with which we agree. We need to be sure, though, that the provisions of this Bill will not hamper action against the rogue parker: the kind of individual who leaves their car in your drive because your home is near a station or a football ground, or the kind of individual who leaves their car in parking bays reserved for disabled drivers at supermarkets and in car parks at leisure activity locations. These questions will need to be pursued during the later stages of this Bill.
The Bill proposes changes to the use of CCTV. Many people regard CCTV as a tool for preventing and fighting crime, and we believe that a full report is needed from the police on its effectiveness before we go down the road set out in this Bill. There may well be a case for some regulation on the use of CCTV, but this Bill provides for a new code of practice that appears to contain so much bureaucracy—with more checks and balances on a single camera than the Government are introducing over police and crime commissioners—that it is likely to deter or prevent the use of CCTV in instances where it would increase safety and security.
Local authorities and police forces will have a statutory duty to have regard to the code in their use of surveillance camera systems. Yet most cameras are used within the private sector. If the Government consider there to be a protection of freedom issue at stake, can the Minister say why no code of practice is to be applied beyond local authorities and police forces? Crimes, and particularly serious crimes, affect our security, and our freedom is in jeopardy if a Government do not regard the right to security as of paramount importance. The previous Government had to address unprecedented peacetime attacks, and the continuing threat of such attacks, on this country. We have heard a great deal in this debate about the rights of the individual, but we have to be careful in protecting those rights not to compromise the security and safety of our communities and our nation.
The previous Government presided over a year-by-year reduction in crimes of all kinds and a 43 per cent reduction in crime overall, according to the British Crime Survey. They left this country a safer place in which to live, work and play than when they came to office, and that is an enhancement in freedom that should not be casually dismissed.
This Bill will be the subject of detailed debate and consideration during its remaining stages, as it should be. While there are changes in this Bill with which we do not disagree—indeed, we agree—there are, as my noble friend Lord Harris of Haringey highlighted, other changes that, despite some of the rhetoric from the Government side, weaken not strengthen an all- important freedom: the right to safety and security for the people of this country.
Lord Henley
My Lords, I start with one point on which I am in total agreement with the noble Lord, Lord Rosser. The Bill will be the subject of detailed debate at its later stages and I look forward to those later stages. I also offer my congratulations to all noble Lords who spoke. I never thought it was likely that I would be getting to my feet so soon after 9 pm. I do not know whether the usual channels will notice this but I hope they do not suggest that we start every day with a two-and-a-half-hour debate on procedural matters hoping it will speed up later proceedings.
We have done very well to get through a big and detailed Bill of this sort—a Bill with some 115 clauses and 10 schedules—in the time we have. I will endeavour to be brief in responding because, as the noble Lord, Lord Rosser, said and I agreed with him, obviously a great deal of this must be discussed in further detail at later stages.
The Bill was described rather cruelly by the noble Lord, Lord Harris of Haringey, as a “mishmash” and by others as a “Christmas pie”. It is possibly a bit too early to describe it as a Christmas pie so I was going to use the word “pudding” because it is a mix of a number of things. The reason I wanted to use the word pudding is thinking of those great remarks of Winston Churchill to emphasise the fact that it has a theme running through it—it is not a pudding without a theme. There is a theme relating to the protections of freedoms that I hope I outlined at the beginning of the debate. There is also a theme that runs through the Bill which I again think is important—the noble Baroness, Lady Royall, referred to it—and that is one of balance. On each of the different issues that we will deal with, it is important that we address the question of the right balance between the protection of our freedoms and the protection of security. Very difficult judgments have always to be made in this area, which is what we will have to do. That is why I will come back to the word “balance” time and again.
The noble Baroness, Lady Royall, thought that the balance was wrong, but a great many other speakers, including my noble friends Lady Hamwee and Lord Goodhart, thought that the balance was right. The noble Lord, Lord Dear, thought that the balance was right, but he wanted to see extensions in the Bill in areas such as freedom of speech. He said that he would not bring forward amendments relating to freedom of speech or removing “insulting” from the Public Order Act while our consultation was out, but he asked whether it might be possible to have some debate on that. As always, I will say that that must be a matter for the usual channels, but no doubt the noble Lord will find some way of introducing it in Committee.
In the time available to me today I hope to run through the various parts of the Bill and make a few brief comments on them, starting with Part 1, on DNA and biometrics. I shall deal first with biometrics in schools, particularly because my noble friend Lord Lucas referred to the proposals as—I think that I have got his words right—a “daffy overreaction” to a perceived problem which would do nothing to improve safety or privacy. I note what he said, but I noted also that his general reaction to the Bill was positive. I can assure him that, although the coalition agreement is generally our bible and something that we always abide by, the proposals have been included not just for reasons of the coalition agreement. No doubt my noble friend will want to come back to that in due course.
On the wider question of DNA and whether we should keep the DNA of people who have not been convicted for three years or six years, again there was a division of opinion within the House. My noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Dear, both thought that the current position was untenable. I had the support of my noble friend Lady Randerson, but others, such as the noble Baroness, Lady Royall, and the right reverend Prelate, had considerable concerns. I think that it was the right reverend Prelate who used that dread expression “the precautionary principle”, which always worries me. I tend to run away when I hear about the precautionary principle, because it implies that one cannot do anything because something might go wrong. I do not know what it would prevent us doing if one took it too far, but, again, I note what he says.
It was my noble friend Lady Berridge, speaking from her experience as a barrister, who reminded us of the importance of the presumption of innocence, the right to privacy and the risk of a breach of Article 8 and rights of privacy if we kept an excessive amount of data. Again, these matters will have to be looked at in considerable detail, but it is important that we get this right. It is important also that we come to address the questions raised by my noble friend Lady Doocey and by the noble Lord, Lord Kennedy, who discussed possible costs to the police in dealing with that.
I will cover two other points in relation to the question of retention of DNA. I think it was the noble Baroness, Lady Royall, and the noble Lord, Lord Harris, who suggested that we were going to be taking some 17,000 rapists off the database and that potentially some 23,000 offenders’ details per year will not be entered on the database under these provisions. The contention that every single person suspected of rape will instantly come off the database is simply not true. It is about keeping the details of thousands of innocent people, who have not been convicted, on the DNA database because of a hypothesis that a proportion of them may go on to commit—
Lord Harris of Haringey
The figures I quoted were from the Home Office’s own figures, reanalysing the cases where individuals would have been taken off the database as a result of these changes and subsequently —these are facts and involve real people—gone on to commit other crimes in 6,000 or 7,000 cases. I will have to check my notes again on the figures, but these were serious crimes, including rape and murder.
Lord Henley
I will obviously allow the noble Lord to check his facts again in due course, but I stand by what I said. The presumption that he was making—along with, I think, the noble Baroness, Lady Royall—was that we were taking all these people off and that they were all going to be guilty. I was trying to make clear that simply keeping the details of those people on the database, because of a hypothesis that a tiny proportion of them may go on to commit serious crimes in future, is not actually going to do anything to increase the conviction rate for rape. As I explained in opening this debate, those charged with a qualifying offence, including rape, obviously will have their DNA retained for three years. It is then up to the police to apply to the courts to extend that by a further two years. That is set out in the Bill. For those arrested but not charged with a qualifying offence in cases where the victim is vulnerable, the police may still apply to the independent commissioner to retain their DNA for three years.
My noble friend Lady Berridge also raised the very important question of the over-representation on the DNA database of those from black and ethnic minority backgrounds. Obviously, the database is not self-populating, because for a person’s DNA to be taken the person must have been suspected of committing a recordable offence and that arrest in law must have been necessary. You cannot, as another noble Lord said, simply arrest so as to get the DNA. That is a significant threshold. However, our proposals will mean that the vast majority of those who are arrested, but not subsequently convicted, will have their DNA profiles destroyed very soon unless they are convicted of a crime in due course.
We have very difficult questions to address, again, on the regulation of surveillance and very difficult questions of balance between those who feel that we need further safeguards and those who feel that people always welcome more cameras, as I think the noble Lord, Lord Harris, suggested. I have to say he ought to look at Project Champion in Birmingham, which I referred to in my opening remarks, and he will find that that is not always the case. I had better stop mentioning the noble Lord if he is going to rise to his feet on every occasion, but I will give way.
Lord Harris of Haringey
Perhaps I will not rise on the next occasion you mention me. The issue about Project Champion was that people welcomed the original introduction. It was when they found out they had been misled about the purposes of the cameras that the anger—the very real and justifiable anger—arose.
Lord Henley
My Lords, it was a real anger and it was quite right that something should be done about it. I think he is wrong, though, to imply that people welcome more and more cameras on every single occasion.
Obviously, we have got to get this right, so I was very grateful that the noble Baroness, Lady O’Loan, for example, welcomed the fact that we were going to have a code of practice and a new commissioner. Again, she said it was important that further things should happen. I think she saw that there was insufficient provision for complaints to be made and she also suggested that there was not—I think I have it right—sufficient oversight. I will certainly look at that, and these are obviously matters that we can examine in Committee.
The last point that I should pick up on is that made by my noble friends Lady Miller and Lady Doocey, and the noble Baroness, Lady O’Loan, when they talked about the number of commissioners and considered whether there could be a merger of commissioners. I appreciate that the number of commissioners seems to be growing, but their roles are distinct. Again, that is a matter of detail that we should be able to consider in due course in Committee.
Turning to powers of entry, my noble friend Lord Goodhart, who generally welcomed the Bill, for which I was very grateful, raised the issue that it includes a number of Henry VIII powers. Whenever that expression is mentioned, I think back to what was almost the first Bill that I handled at this Dispatch Box, which related to statutory sick pay, which was one of the earliest modern reintroductions of Henry VIII powers. I remember the savaging that I received from the then good friend of the noble Lord, Lord Goodhart, Lord Russell, and the problems that we had with the Bill. When I die, no doubt Henry VIII powers will be found engraved on my heart. However, the noble Lord accepts the fact that it is possibly appropriate here, in removing powers of entry, to use those Henry VIII powers. I stress—in particular, to my noble friend Lord Selsdon—that that power is only for the repeal of powers of entry. Clause 41, which allows amendments to be made to powers of entry, makes it quite clear that those powers can be used only where they do not reduce the protection for the individual. Again, I pay tribute to all the work that my noble friend Lord Selsdon has done over the years in trying to reduce the number of powers of entry. In due course, I will write to him with further details on the code of conduct.
Turning briefly to wheel clamping, that is a matter for Committee on which I know that my noble friend Lord Attlee, who has great expertise in the area, will be able to deal with it. As my noble friend Lord Bradshaw said, this is something that we need to look at with very great care, especially access to the DVLA database. I shall also consider, as the noble Lord, Lord Kennedy, said, what we need to do about ticketing and abuse in that area. I have also noted what the noble Baroness, Lady Grey-Thompson, did not have to say about the abuse of blue badge parking, which concerns all of us and which we should address. However, clamping in a disabled parking area is not the solution to that problem, because once you have clamped a vehicle in that area, you cannot use that area. There are other, better ways to deal with that problem.
Moving to counterterrorism and the questions raised about the reduction to 14 days, I note that most noble Lords are happy with the reduction from 28 days to 14 days, but I note the concern about the measures that would have to be used to raise that 14 days to 28 days if we were in a difficult situation where we needed to do that. The noble Lord, Lord Kennedy, was very honest when he said that it was difficult to see how we could get from the 14 days back to the 28 days. We have to look at that. At the moment we have Clause 58 and the powers in the Bill as set out, but certainly we will want to look at those again very carefully. I note what the noble Lord, Lord Armstrong, had to say, that he thought that we had not gone far enough in what we were doing, and that it would be too difficult to do it. He would certainly want to try to extend Clause 58, as I understood him, to allow the Home Secretary to extend the period in other circumstances where appropriate. I was grateful that he made it quite clear that he hoped she would never have to make use of any of those powers.
I come now to vetting and barring, and again that expression I used at the beginning about getting the balance right is more important here than in virtually any other field. Of course, as the noble Baroness, Lady Grey-Thompson, put it, our first priority must be the protection of children and young people, and that will remain our priority. However, we obviously have to have the right balance, as was stressed by my noble friend Lord Hodgson, though others thought that we had got this wrong and thought more protection ought to be brought in. As I said at the beginning, I want to stress that if you bring in too great a control and too great protections, there is the danger of encouraging a tick-box mentality, which might not provide the better protection for children and young people that we want. Again, I will look at that as we discuss these matters in Committee.
I would say to my noble friend Lord Addington, and the noble Baroness, Lady Grey-Thompson, but more particularly to my noble friend Lady Heyhoe Flint, who all spoke about sporting issues, that I would be more than happy to see a delegation of sports bodies if she would like to bring them to see me in due course.
I would also like to suggest to the noble Lord, Lord Harris, who said that he was not happy about what might happen to volunteering and the risk to volunteers, that he look at some of the briefing provided by Volunteering England, which states:
“However, we would not want to see this wording tightened up by use of terms such as ‘close’ or ‘constant’ supervision, as has been suggested by other organisations, because it could further restrict the involvement of volunteers. If the requirements for supervision are too prescriptive, organisations may be put off from involving volunteers and potential volunteers deterred from volunteering”.
Lord Hodgson of Astley Abbotts
Will my noble friend give way momentarily? One of the questions now is: what is “frequent and intensive” when dealing with children and vulnerable adults? Are we going to have a new definition of it, and if there is a new definition of it, will it be available for discussion in Committee? Clearly, there is a wide range of opinions around the Chamber about how we should tackle that.
Lord Henley
How you would interpret those words is really a question of fact and degree. I will have a further look before we get to Committee to see whether I can write in greater detail on that. If I cannot, I am sure that it is something that we would want to discuss in greater detail in Committee and at later stages.
Finally, I come to freedom of information and data protection in Part 6. I will touch on this only very briefly because I understand the concerns expressed by my noble friend Lady Hamwee, the noble Lord, Lord Bew, and the noble Baronesses, Lady O’Neill and Lady O’Loan, about the publication of research, particularly early publication. I accept that there is a genuine concern coming from Universities UK.
Baroness O'Neill of Bengarve
I just want to clarify that. There is absolutely no concern about the publication of research. That is what researchers aim to do. The concern is about applying the publication criteria to databases which are of a size that precludes their being published in journals, monographs or any other way. These are causing concern for large numbers of research institutions which have such databases but are committed to open publication.
Lord Henley
I am sorry if I misunderstood the noble Baroness. I have written down “pre-publication”. I will look carefully at what she had to say. Certainly, I hope that we can address that in due course. The noble Lord, Lord Bew, said that we should copy Scotland but I think that the noble Baroness, Lady O’Neill, was not so keen on that idea. Again, we need to address these matters in due course and examine them in a manner that I properly understand, particularly as I just seem to have misunderstood the noble Baroness on this occasion. The noble Baroness went on to ask what she described as some boring questions about costs. As they are allegedly boring questions—I am sure they are not—I will address them in a letter.
That is a rather rapid gallop through some of the comments that we have received today. I thank all noble Lords for their contributions. If we can agree on nothing else, we can agree that we will have an interesting and possibly somewhat lengthy Committee stage. As noble Lords will know from the Motions that I will move after this Bill has had its Second Reading, it will move down a novel line with some of the Committee stage taking place in the Chamber on the more contentious issues and some taking place in Grand Committee. I hope that that will have the agreement of the House and that once the Second Reading Motion is agreed, your Lordships will permit me to move the other Motions that stand in my name.
Protection of Freedoms Bill
(12 years, 6 months ago)
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Lord Henley
That (a) the following provisions of the Protection of Freedoms Bill be committed to a Committee of the Whole House—
(i) Clauses 1 to 25 (destruction, retention and use of fingerprints etc.);
(ii) Clauses 54 to 56 (vehicles left on land);
(iii) Clauses 64 to 78 (safeguarding of vulnerable groups);
(iv) Clauses 79 to 84 (criminal records);
(v) Schedule 1 (destruction, retention and use of fingerprints etc.);
(vi) Schedule 4 (recovery of unpaid parking charges);
(vii) Schedule 7 (safeguarding of vulnerable groups: Northern Ireland); and
(b) the remainder of the bill be committed to a Grand Committee.
Protection of Freedoms Bill
(12 years, 6 months ago)
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Lord Henley
That it be an instruction to the Committee of the Whole House to which provisions of the Protection of Freedoms Bill have been committed that they consider those provisions in the following order:
Clauses 1 to 19, Schedule 1, Clauses 20 to 25, Clauses 54 to 56, Schedule 4, Clauses 64 to 78, Schedule 7, Clauses 79 to 84.
Protection of Freedoms Bill
(12 years, 6 months ago)
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Lord Henley
That it be an instruction to the Grand Committee to which provisions of the Protection of Freedoms Bill have been committed that they consider those provisions in the following order:
Clauses 26 to 39, Schedule 2, Clauses 40 to 53, Schedule 3, Clauses 57 to 61, Schedule 5, Clauses 62 and 63, Schedule 6, Clause 85, Schedule 8, Clauses 86 to 109, Schedules 9 and 10, Clauses 110 to 115.