House of Lords
Live Music Bill [HL]
Lord Clement-Jones
That the House do agree with the Commons in their Amendments 1 and 2.
“(b) either —
(i) the live music is unamplified, or
(ii) the live music is amplified and takes place in the presence of an audience of no more than 200 persons, and”
Lord Clement-Jones
My Lords, both amendments relate to Clause 1 of the Bill. Amendment 1 is a minor, technical amendment which simply alters the heading of new Section 177A of the Licensing Act 2003 to refer to live music.
Amendment 2 deals with an unintended lacuna as regards unamplified music taking place in licensed premises with audiences of more than 200 persons so that it will be possible, under the new Section 177A, following a review of the licence or club premises certificate, to alter or add a condition about live music to make the condition effective in the same way as it is for events with audiences of no more than 200. This is a modest Bill, but one which will have major impact on the performance and enjoyment of live music, livelihoods—especially of young musicians—and the viability of our pubs and clubs.
As the Bill is briefly back in the Lords, it is a perfect opportunity to thank all those who helped to conceive it and to ensure its passage through both Houses by handing out my own Brit awards. It is the culmination of five years of concerted campaigning by many people, and I want to pay tribute to the original Live Music Forum; John Whittingdale, MP, and the Culture, Media and Sport Select Committee; Equity; the MU; the Incorporated Society of Musicians; numerous organisations representing the licensed trade; Feargal Sharkey; and Jo Dipple of UK Music and its members. I also pay tribute to John Penrose, the Minister; my noble friend Lady Rawlings and the DCMS officials who have been unfailingly helpful on behalf of the Government; Members of all parties, both in this House and in the House of Commons, who have been so supportive of the Bill at all stages; and to Andrew Grimsey of Popplestone Allen, who drafted the Bill and advised on many technical aspects of licensing law. The greatest accolades, however, go to my honourable friend Don Foster, MP, who unerringly guided the Bill through the reefs and shoals of Commons procedure; and to my fellow long-distance runners, Hamish Birchall, live music campaigner, and our very own senior researcher in the Lib Dem Whips Office, Tom Kiehl, without either of whom it would not have been possible even to have got the Bill off the ground.
I look forward to an early commencement date, before the Queen’s Jubilee and the Olympics. At that time there will be suitable celebrations and performances, I hope, in pubs and clubs up and down the land. I beg to move.
Lord Colwyn
I do not have my trumpet with me, but I add to the congratulations that my noble friend Lord Clement-Jones has offered. I congratulate him and Don Foster on taking on the Bill, and the Government for accepting it. The Bill represents a historic change in the treatment of live music under the law. The Licensing Act 2003 and its preceding Acts embodied a presumption against most performances unless first licensed, on pain of criminal law sanctions. This harsh treatment, dating back more than 250 years, will end for performances within certain hours and to a relatively small audience. The potential risks are already regulated by separate legislation.
While there were and are rational grounds for licensing large events, there is also a puritanical streak in English culture that was embodied by licensing legislation. This enduring puritanism was expressed in often unreasonable objections to even the mildest live music licence applications, with absurd over-regulation and enforcement by many local authorities. Jo Dipple, acting chief executive of UK Music, has said:
“This is a great day for music. The Live Music Bill will make a real and positive difference to the lives of musicians. There is no doubt that the current Licensing Act has created needless layers of bureaucracy— making it complicated and expensive for pubs and other small venues to host live gigs. The entire industry would like to thank Lord Clement-Jones and Don Foster who have made this change possible”.
I, too, thank John Penrose, the Licensing Minister; the noble Baroness, Lady Rawlings; John Whittingdale, the chair of the Culture Select Committee; the noble Baroness, Lady Buscombe; and the civil servants and lawyers who worked behind the scenes on the Bill. I should also like to thank Hamish Birchall, who has campaigned for many years. His dedicated hard work and research have been important for so many of us who have been involved with this Bill for many years. I hope that the Bill will be enacted as soon as possible to fit in with events marking the Jubilee and the Olympic Games.
Baroness Rawlings
My Lords, on behalf of the Government, I would like to add my thanks and congratulations to my noble friend Lord Clement-Jones on his persistence and for having successfully steered through this very worthwhile Bill. Regarding the Olympics and Her Majesty the Queen’s Jubilee, it would seem appropriate. I will, of course, take the wishes of my noble friend Lord Clement-Jones back to the DCMS.
Domestic Violence, Crime and Victims (Amendment) Bill
(12 years, 10 months ago)
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Lord Laming
My Lords, the Domestic Violence, Crime and Victims (Amendment) Bill may be a slight document, but I hope the House will agree that it is one of the utmost importance in holding to account those who cause or allow a child or vulnerable adult to suffer awful deliberate harm.
Many Members of this House contributed most ably during the passage of the 2004 Act of the same title. Therefore, the House will recall that Section 5 of that Act introduced changes in the safeguarding of children and vulnerable adults that have proved to be enormously effective. That Act of 2004 provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they cause the death of that child or vulnerable adult if three conditions are met. The conditions are: first, they were aware, or ought to have been aware, that the victim was at significant risk of serious physical harm from a member of the household; secondly, they failed to take reasonable steps to prevent that person coming to harm; and, thirdly, the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw, or ought to have foreseen. In my lay terms, this meant that adults in the household could no longer avoid prosecution either by blaming each other or by remaining silent.
It is encouraging that there is now a body of evidence that demonstrates both the wisdom and utility of that legislation. Indeed, its success was so well illustrated by the outcome of the prosecution of the defendants in the dreadful case known as Baby P. The case of Baby P rightly caused widespread distress across the nation. Without the 2004 Act, those responsible would not have been held to account for the awful suffering and terrible death of that defenceless child. Indeed, they were successfully found guilty of causing or allowing the death of Baby Peter and they were given the maximum sentence. During the passage through Parliament of the 2004 Act, careful consideration was given to whether the offence should include serious physical harm. At the time it was well understood that there was much to be said for doing this, not least because there was already clear evidence that some children had managed to survive despite being victims of deliberate harm. Sadly, some of these children have remained damaged for life. Indeed, in some cases it was a matter of chance that the authorities had been able to intervene just in time to save the life of the victim. Understandably, saving the life of the child was rightly the urgent priority but, sad to say, it often meant that the adults of the household could not be prosecuted unless they co-operated with the authorities.
After a great deal of thought, the then Minister in the other place said that,
“examples are compelling, which is why I do not rule out extending the offence at some time in the future. It is important, first, to put in place the new offence. Let us get that right first and see how the provision operates. If appropriate, we may return to the problem at a later date”.—[Official Report, Commons, 27/10/04; col. 1473.]
We are now at that stage. Moreover, we now have the benefit of a body of evidence that indicates even more clearly that there is a real need for this legislation to include serious physical harm. Because of that, I am glad to say that there is widespread support for this Bill across government and throughout the front-line services. It comes to us having successfully completed its passage through the Commons.
I will spare the House details of individual cases as they are so awful, but I hope that it will help the House if I refer briefly to information from the Crown Prosecution Service. This is based on a survey undertaken by the chief prosecutors in six police areas: Sussex, Northumbria, Merseyside, Norfolk, Hertfordshire and Thames Valley, so it was a good cross-section of the country. The prosecutors were asked to identify the number of cases in 2010 in which they had been unable to prosecute for grievous bodily harm or cruelty to a child or vulnerable adult because there was insufficient evidence as to which of the members of the household was responsible for the injury. Those prosecutors identified a total of 20 cases involving children and three involving vulnerable adults that could not be prosecuted under existing legislation, and which they believed could be prosecuted under the changes proposed in the Bill. The areas surveyed account for 15 per cent of the Crown Prosecution Service’s business. If extrapolated, those figures produce national figures of no less than 133 children and 20 vulnerable adults. I am therefore sure that noble Lords will agree that this indicates as clearly as possible that there is now an urgent need for this Bill.
It is against that background that I hope the House will agree that this brief introduction will suffice. I know from my time in this House that we all attach immense importance to the protection of children and vulnerable adults. Our aim is to protect them from serious neglect and deliberate harm. This Bill affords the opportunity to hold to account members of a household who cause or allow such awful suffering to these vulnerable people. I beg to move.
Baroness Seccombe
My Lords, I am delighted to support this Bill, which was explained so clearly by the noble Lord, Lord Laming, the distinguished Convenor of the Cross Benches, who is taking it through this House as a Private Member’s Bill. I can think of no one better to pilot it through this House than the noble Lord. His professional career and his experience of listening to the horrific details of the appalling injuries that little children and vulnerable adults have suffered at the hands of those who were supposed to be caring for them must have been heartrending. I have always studied the outcomes of the inquiries conducted by the noble Lord and felt the frustration and sadness that he must have experienced. The loophole left by the 2004 Act has allowed guilty people to escape from the legal process through lack of evidence that would have brought them before the courts.
The Bill may be referred to as only a small Bill, but I see it as one of real importance because it seeks to right an appalling wrong that has existed in our legal system. Section 5 of the Domestic Violence, Crime and Victims Act 2004 came under the heading, “Causing or allowing the death of a child or a vulnerable adult”. It certainly broke new ground and was controversial at the time. I accept that an area of concern is the treatment of, for example, a woman who has been shocked and injured, either physically or mentally, into submission by some evil husband or partner. However, we also have to accept that sadly there are women who are complicit in the ill-treatment of their children. I therefore feel that this Bill would enable the statutory authorities to get involved at an earlier stage and establish what has happened. Therefore, now is the time to extend the 2004 Act with this amendment.
It will mean that in a case in which it is obvious that a child or vulnerable adult has suffered serious harm that must have been inflicted by one of a limited number of members of a household, the case should not fail because of insufficient evidence to point to the person responsible. In other words, it will bring those offenders who were previously outside the court’s jurisdiction before the court to answer for their actions.
I wish the Bill swift success as it makes its way through this House, and believe that the sooner it is on the statute book the better for the justice system.
Lord Lester of Herne Hill
My Lords, I, too, support the Bill, congratulate the noble Lord, Lord Laming, and echo what has been said by the noble Baroness, Lady Seccombe, about his unrivalled qualifications for carrying this gift from the other place into this House. Perhaps I may say a word about that process. This is a Private Member’s Bill from the other place, and those who have read the right honourable Jack Straw MP’s interesting article in today’s Times newspaper will note that he said:
“I can’t remember a time when Commons business was so light and the Lords so overloaded”.
One of the points that Mr Straw made was:
“The infant mortality of Private Member’s Bills is so high because they are vulnerable to all the 19th-century filibustering devices that were abolished decades ago for government Bills. These backbench measures should be taken from their Friday ghetto and brought into the normal Monday-Thursday Commons week. They should be sensibly timetabled like any others, so that MPs would be able to vote on their merits. This apparently prosaic change would wholly alter, for the better, the authority of MPs”.
We are privileged in this House to be able to introduce Private Member’s Bills, some of which actually reach the statute book without the fetters placed by the other place upon that process. This is a rare Bill that has been able to pass through the other place with government support and reach us today. Speaking for myself—I hope without causing offence to the other place—I suggest that when we consider reform of this place, it will be important to consider the reform of the procedures of Parliament as a whole and not merely ourselves. As to our procedure for Private Member’s Bills—and I speak as someone incontinent in my use of that procedure in the past 19 years—it has been very beneficial here, and it is a great day when something comes from the Commons as important as this Bill, about which I shall say very little because the Minister will be pleased with me if I am more brief than barristers normally are.
I should like to say just a few things. First, we are told by the Parliamentary Under-Secretary of State for Justice, Mr Crispin Blunt MP, who supported the Bill in the other place, that,
“the Government are committed to preventing the creation of unnecessary criminal offences”.
I fully support that and I look forward to the Queen’s Speech to see whether we are presented with yet another Bill containing further criminal offences. I hope that we will not be, because in the past two decades too many unnecessary criminal offences have been produced, especially by my former department, the Home Office. What the Minister said in support of the Bill in the other place is therefore good news.
On that occasion, he also said that the Government,
“consider the extension of the criminal law in the relatively limited way proposed in the Bill to be justified and appropriate. In reaching that conclusion, we have had regard to the possibility that those responsible for very serious injury may escape conviction”,
and—the noble Lord, Lord Laming, referred to this already—
“the vulnerability of both child and adult victims; and the special responsibility that members of the same household bear for the vulnerable with whom they live”.—[Official Report, Commons, 21/10/11; col. 1184.]
I shall not bore the House or take time by reciting that speech, and I hope that in his reply my noble friend the Minister will draw upon what was said in the other place.
One of the impressive aspects of the speech was the care with which the Minister in the other place explained why this is a proportionate measure and why it would be wrong to go further. When we introduce new crimes or extend existing crimes, there are some who believe that our purpose is to enforce morals. That was of course Lord Devlin’s famous idea: that the purpose of the criminal law was the enforcement of morals. I do not take that view. I think that the purpose of the criminal law is utilitarian; it is to deter serious wrongdoing and to punish.
We must be very careful, especially in the domestic violence field, to know exactly what we are doing. I give a couple of examples. The first is female genital mutilation. We passed a law some time ago to make that appalling atrocity a crime. There has been no prosecution. We then had to consider forced marriage, and the previous Government rightly came to the view that there was no point in making forced marriage a crime as we had sufficient criminal law, so this House and the other place eventually decided to use civil law and civil protection on the ground that it was better to use civil law than the police and the criminal standard of proof in dealing with such a sensitive matter. As Members of the House will know, the Government are now consulting on whether we should add forced marriage as a crime as well as a civil wrong. I think it would be risky to do that, as it might dishonour families and deter, but that is a very controversial matter.
There seems nothing controversial in what is proposed here. Therefore, to please the Minister with my brevity, I will leave it to him to develop what has been so well developed in the other place.
Baroness Butler-Sloss
My Lords, I hope to be equally, if not even more, brief on a matter which, I suspect, is not only of interest to but supported by the entire House. As a former Family Court judge who tried many child abuse cases, particularly very serious non-accidental injury cases, as they are called in the Family Court, I very much welcome this extension to the 2004 Act. Like those who have spoken before me, I warmly congratulate the noble Lord, Lord Laming, who has enormous experience of this area of the law—children and vulnerable adults—on his efforts in presenting the Bill. I sincerely hope they are successful.
It is important to recognise that this is an issue of protection of children and vulnerable adults and holding to account the perpetrators of their abuse. Where a child is badly injured in a household where several adults are living—generally mother and father or mother and her partner—it is often impossible to say which of the adults inflicted the appalling injuries from which so many children suffer. In the Family Court, we can protect the child by taking it away from the family, but it is very difficult—in many cases, impossible—to be certain who actually committed the offence.
As the noble Baroness, Lady Seccombe, said, not only are there mothers who protect their children, many mothers prefer the man to the child. She may or may not have committed the offence; much more likely is that she is covering up because the man is her support—financially and in every other way—and, when faced with the choice between a man and a child, again and again, in my experience, the woman has chosen the man. Children are not necessarily safe in the care of their mothers. That is a tragedy, but in the Family Court we can protect them. If the case goes to the criminal courts and it cannot be ascertained which of them did it, unless the child remains in care, the terribly difficult problem for the judge is to decide whether the child can go back to one of those adults. That is often the reason why the child does not go back to any adult and has to go into permanent care—to be fostered or, occasionally, adopted.
The child can be protected but at the moment the perpetrators are not brought to justice, as we heard from the figures given by the noble Lord, Lord Laming, of those who could not be successfully prosecuted. That is contrary to justice. It is not an issue of morals; it is an issue of justice, which may not be quite the same thing—but this is not the appropriate forum to discuss that. Most of us have a gut feeling that if people have committed offences or know about it and do nothing whatever to protect the vulnerable, they should be up before the criminal court and dealt with. That is what the Bill does. As the noble Lord, Lord Laming, said, it is purely an extension of the 2004 Act. The standard of proof will be exactly the same and the prosecution will be dealt with in exactly the same way, as the noble Lord set out in his speech.
It is a splendid Bill. It is exactly what is needed. It is overdue and I hope that it will be passed with acclaim by all Members of the House.
Lord Cormack
My Lords, no one is better qualified to give the Bill a testimonial than the noble and learned Baroness, Lady Butler-Sloss. I am sure that we are all delighted that she has done so. I add my congratulations to those of others to the noble Lord, Lord Laming, not only on introducing the Bill but on the manner in which he did so: with calm precision, unflamboyant language but clear dedication. No one in this country is better qualified to introduce such a measure than him.
It comes from another place, and that gives us all comfort, because we know that a Private Member’s Bill that has a fair wind from the Government and the Official Opposition has a really good chance of getting on the statute book. I am sure that, when he responds to the debate, my noble friend will be able to indicate that this will soon become law. It is a small but far reaching measure. We are talking about cruelty. Sometimes we use the word “abuse” too loosely. We are talking about cruelty to children and vulnerable adults. There should be no hiding place for those who are complicit in or guilty of acts of cruelty. To my mind, to be present is to be complicit; the noble and learned Baroness, Lady Butler-Sloss, almost said as much. If a woman is being intimidated by a man, nevertheless she knows that if cruelty is being inflicted on a child that is wrong. She should become a domestic whistleblower or suffer the consequences by being regarded as being complicit in an act of cruelty.
I very much hope that the Bill will quickly become law and will lead to some people who have hitherto escaped justice being brought to justice. Winston Churchill once said that one judges a society by the way in which it treats those who are imprisoned. I have always subscribed to that, because sending to prison is the punishment and the purpose of prison is rehabilitation; but one also judges a society on how it protects its most vulnerable members. Whether it be an incapacitated adult, for physical or mental reasons, or a child, it is the duty incumbent on all of us to ensure that—as far as it lies within us—there is absolute protection given. If people transgress and inflict cruelty, they must be brought to justice, adequately punished and, one hopes, properly rehabilitated. I am delighted to be able to support this Bill. I wish it a speedy passage and warmly congratulate the noble Lord, Lord Laming, on his initiative.
Lord Loomba
My Lords, I thank the noble Lord, Lord Laming, for initiating this debate. Domestic violence is an important issue which impacts on the lives of many families, including children. There is growing evidence that children who live in families where there is violence between parents can suffer serious long-term emotional, and lasting psychological, damage.
Let me first declare my interest as a vice-president of Barnardo’s, a leading charity in the UK which is working to address the problems of domestic violence and the effect that it has on the children in families. Barnardo’s aims to alleviate the long-term effects of domestic violence on children through counselling and family support services. Many mothers continue to provide love and stability for their children in very difficult circumstances and Barnardo’s tries to strengthen their ability to cope. Where a mother’s ability to look after her children has been undermined by the stress of living with fear, Barnardo’s tries to help her improve her confidence and self-esteem so that she can protect herself and her children from violence.
The violence between adults is often directly projected on to children. Many public inquiries into the deaths of children in recent years have shown that the men responsible for the death of children have a history of violence towards their female partners. In a liberal society equality should apply to all: legislation and practices should take into account the specific needs of all its citizens. UNICEF’s Convention on the Rights of the Child defines its mission as to protect children’s rights, to help meet their basic needs and to expand their opportunities to reach their full potential. Yet how often does this convention take into account the difficulties that families face?
For example, one of the areas that is least understood is the role that alcohol plays in the family structure. A man does not necessarily have to go to a pub or a bar; he can drink to excess at home and the family will not wish to publicise it to the outside world. In many cases neither social services nor alcohol dependency groups understand what is happening in such families, or how to create awareness within isolated communities. On average, women contact 11 agencies before they receive the help they need. The number increases to 17 in cases of black and ethnic minority women.
Domestic violence has often been seen as a problem between adults; it was thought that as long as children were not in the same room and caught in the crossfire they would not be affected by violence between their parents. However, there is a growing understanding of the risks to children. We must accept that children’s lives can be damaged by domestic violence. It is also clear that children are not deceived by closed doors. They are extremely aware of tension in the adult world, particularly the tension that leads to violence. This exposure to extreme and continuous violence without intervention allows the child to accept it as part of their development, often resulting in their perpetrating such violence in adult life. Through violence in the home, children may suffer emotional and psychological damage. The very young may show physical signs of distress such as bedwetting, stomachaches and disturbed sleep. Older children can become withdrawn or exhibit extreme behaviour such as misusing alcohol or drugs. Social workers need to be more aware of these inherent problems and what they can do to help.
Poverty often leads to domestic violence. People seek asylum in civilised countries because of the level of violence they face in their own countries. Forced marriage, as mentioned earlier, is another form of domestic violence, as the woman does not give consent to the marriage and the decision is made by family members, most likely for immigration purposes. Her body is violated against her will, which one can say is tantamount to rape. A message must be conveyed that forced marriages must never be tolerated, and stern action must be taken against those who perpetrate them.
I shall now refer to Clause 5. The ambiguity surrounding this part of the Bill needs to be promptly addressed, and I hope that this Second Reading will end the doubt surrounding the Bill. The noble Lord, Lord Laming, mentioned the case of Baby P. That case was shrouded in doubt as both defendants were passing the blame and the judge could not confirm which party was to blame. This seems not only flawed but quite simply a juvenile act which makes a mockery of the judicial system. Although resolution was eventually found and both the mother and her partner were sentenced, one must see that had the child not died, Clause 5 would have been negated, and there is a chance that no conviction would have been found.
Murder and manslaughter are dealt with in sentencing, yet if a child is seriously harmed, left with broken bones and multiple wounds, Clause 5 will not be applicable. This clause desperately needs to be extended to include serious physical harm, as there are far too many cases when no conviction of parent or carer is found because of each passing the blame and the fact that the child is alive, even if it is in a vegetative state. Many more convictions and much more resolution will be found by the expansion of the Bill to include the term “serious harm”.
Significant reductions in the vital help and support available to women and children at risk will put additional pressures on the services that survive. The impact of reduced specialist domestic violence services as well as cuts to other services, such as police, risks an increase in deaths or serious harm caused by domestic violence. We cannot afford to take that risk. I urge the Minister to examine these cuts, because when you assist a woman you are actually helping the entire family. Today’s debate indicates how important it is to focus not only on domestic violence but on its impact on the family and, more importantly, more generally. No civilised society or nation can live in peace if crimes are committed against women and children. We must set an example to the rest of the world in affirming that women are the cradle of civilisation and we will not be compromised by any legislation that treats them differently, particularly on issues of violence.
Lord Elystan-Morgan
My Lords, like all other Members who have spoken, I warmly applaud the Bill. I consider that Sir Paul Beresford MP, who introduced it in the Commons, has placed the community very much in his debt. As for the noble Lord, Lord Laming, there cannot be anyone better qualified, through his distinguished services already in this field, to lead the Bill through the procedures of this House.
The list of credits does not end there. I warmly applaud the Minister—the Deputy Leader of the House—and Her Majesty's Government for the support that they have given in this regard. It has not always been the case over the past 18 months that I have been able, with metronomic regularity, to extend such felicitations to the Government, but I do so with very great sincerity and conviction in this case.
It seems to me that the story starts a quarter of a century ago with the case of R v Lane and Lane, which the House will recollect. A 22 month-old child sustained dreadful head injuries—multiple fractures of the skull—and died. The mother blamed the stepfather; the stepfather blamed the mother. Both were charged with manslaughter and convicted. They appealed to the Court of Appeal, which ruled that their convictions were unsustainable. As lawyers appreciated, the ruling was in no way confined to family situations. One might have a situation where a document could have been forged only by A or B. That would not allow one to convict A or B. The same is true in relation to theft, any form of assault and a dozen other criminal situations. It means that a person can be convicted only if it is clearly shown beyond reasonable doubt that they have committed a particular offence. It is as cerebral as that.
In 1985, following the decision by the Court of Appeal, a thrill of horror ran through the community, which appreciated exactly what this could mean in so many domestic situations. In consequence, the NSPCC, to its eternal credit, compiled a comprehensive and excellent report—in 2002, if I remember rightly. That led to the Law Commission's two reports—a consultative report in April 2003 and a final report in September of that year—which urged legislation in relation not only to murder and manslaughter but to causing serious harm to a child. Today, that chapter is rapidly coming to a close.
In 2004, it was only in relation to murder and manslaughter that this protection was given to children and vulnerable adults. However, I understand the reticence with which Parliament proceeded. In one sense, it was in a jurisprudential context breaking very new ground. In another it might not have been all that revolutionary. Section 1 of the Children and Young Persons Act 1933 sets out two types of responsibilities. One relates to active acts: conscious, deliberate acts of commission against a child. The second covers acts of omission: failing to feed or clothe a child, or to give them proper medical attention. Therefore, there was nothing quite as revolutionary in this development as might have been thought. In any event, it was the attitude of government—understandably—that there should be an experimental period. The case of Baby P shows clearly how well this law can be applied and how necessary it is now to fill in the rest of the lacuna.
I will mention one or two relevant matters. I am very pleased that in this legislation, as in the 2004 legislation, there is a provision that orders a judge not to throw out a case at the end of the prosecution evidence but to hear the whole of the evidence before coming to a determination on whether the case should go to a jury. That is a very important matter. In practice it means that very often a defendant or defendants will go into the witness box, and on cross-examination it may be that they will produce evidence on which they could be convicted. Failing that, each defendant might blame the other. That is admissible evidence, subject of course to a stern warning from the learned judge. It is a matter of some importance that the provision is retained.
My technical point is that under Section 5 of the Indictments Act 1915 it is open, where two persons are charged as joint defendants in relation to the same offence, for an order of severance of trials to be made. In a case such as this, a competent defending counsel would immediately advise that there should be severance. Twenty years ago, it was said that the high-water mark in relation to severance in such cases had been reached. Since then it has been rather difficult for such an order to be given where joint defendants face the same charge. However, Section 5 gives the learned judge total discretion, and the first thing that counsel for either defendant in a situation like this would do would be to apply for severance. It may be that the precedents are such that few judges would grant such an application, but it is possible. It might not be a bad thing—I put this as a humble suggestion to the Government—if there were to be either a directive or legislation dealing specifically with the matter.
The other issue relates to civil matters such as family law hearings that do not come before the criminal courts. This matter was dealt with very fully by the noble and learned Baroness, Lady Butler-Sloss. By a different path, much the same solution has been reached. In her modesty she did not refer to the case of Baby B, which was decided by this House in its appellate capacity in 2003. The House said then that in a situation where it was clear that Baby B had suffered abuse that could have been committed only by one or both of two persons, in those circumstances it would be grotesque—that was the word used by the House—to pretend that Baby B was not in a situation where a care order should be made, and therefore that both A and B, as possible perpetrators, were regarded as persons who would place Baby B at risk. The jurisprudential path was very different to that adopted by the legislation we are dealing with, but it achieved a just and practical result.
The other matter is small. Clause 2(2) of the Bill defines “relevant offence” as,
“an offence under section 18 or 20 of the Offences against the Person Act 1861 (grievous bodily harm)”.
I understand, since the harm that is aimed at here is serious physical harm, why there should be the words in brackets. However, the technicality of the situation is that in both Section 20 and in Section 18 of the Offences Against the Person Act 1861, which covers the more serious offence, there are the alternatives of grievous bodily harm or unlawful wounding. In relation to Section 20, unlawful wounding would probably not be an appropriate category for consideration. Under Section 18, which covers unlawful wounding with intent to do grievous bodily harm, it undoubtedly would be. This is a small matter that I am sure will be attended to. One could have had a most interesting discussion today about whether this Bill falls under the Wolfenden principle of practicality, the John Stuart Mill concept of criminal responsibility or the Devlin concept of morality and criminal responsibility. I believe that it probably qualifies on all counts, and I wish it well.
Lord Sheikh
My Lords, I begin my remarks by congratulating the noble Lord, Lord Laming, on presenting this Bill to the House. I warmly welcome the opportunity to debate it and I am a strong supporter of measures which assist the prosecution of people who hurt children or vulnerable adults and those who stand by and allow such acts.
Maintaining a wall of silence should not be a way to escape responsibility for perpetrating or allowing truly horrible offences against children or vulnerable adults in their own homes. This issue is one in which I have long taken an active interest. We should all want to do what we can to ensure that those who stand by or carry out abuse are not able to evade justice by passing the buck.
I recall well the background which led to the passing of the Domestic Violence, Crime and Victims Act 2004. I commend the continuing work done by the NSPCC in highlighting the problem of securing convictions when a child dies or is seriously injured by parents or carers. I also want to place on record my appreciation of the work of the Law Commission, whose efforts have done much to bring this debate to where we are today.
Section 5 of the 2004 Act created the offence of causing or allowing the death of a child or vulnerable adult, but the offence is limited to incidents where the victim died of an unlawful act and applies only to those members of the household who had frequent contact with the victim. The household member must have caused the death or failed to take reasonable steps to protect the victim, and the victim must have been at significant risk of serious physical harm. Only those over 16 may be guilty, unless they are the mother or father of the victim.
At the time that the 2004 Act was debated, the Minister made clear that it was important to establish the new offence before consideration was given to extending its provisions. The Act has been widely considered to have worked well in practice and to have operated in the way intended. During the period 2005 to 2008, the offence was used successfully in prosecuting 17 people, including the mother of Baby Peter Connelly and her boyfriend and lodger. In that case, it was clear that one of those three was responsible for the death of the child, but the police were not able to prove which one. In consequence, all three were found guilty of causing or allowing his death. Noble Lords cannot have failed to notice the considerable public anguish which that case aroused in the country. It is not my argument that this Bill should be a response to that concern, but rather that this is an appropriate next step to protect the most vulnerable.
I acknowledge that some have expressed concerns about potentially criminalising those who are themselves vulnerable or victims of domestic violence. I am satisfied that the threshold of “reasonable steps” is adequate to protect people in those circumstances from unwarranted prosecution. I understand that the Crown Prosecution Service is actively supportive of attempts to extend the scope of the offence. Its data suggest that in 2010, in six areas there were as many as 20 cases that could not be prosecuted under existing arrangements, but which might be under the proposed new offence.
This Bill, by amending Section 5 of the 2004 Act, would widen its scope to include situations where children and vulnerable adults have been seriously harmed. The Bill will apply to cases of causing or allowing a child or an adult to suffer physical harm. It will apply to members of the victim's household who have frequent contact with the victim and who should have been aware of the situation or who caused the injury or death. It must be established that there had been a history of violence and that the victim had been subjected to abuse and hence was in danger. It will not be necessary to establish whether the person who is accused was responsible for causing the death or serious physical harm or for allowing the death or serious physical harm.
Widening the scope is still very much in keeping with the spirit and objectives of the 2004 Act, and, I believe, is very much to be welcomed. In total, this represents a healthy package of measures which would be fair and proportionate and would provide strong protection for some of the most vulnerable people. I recognise that this is quite a complicated area in which to legislate and I understand the caution which was applied during earlier debates.
One outcome that I would like to see from this Bill is an improved ability to enable the person who caused the victim's death to be identified so that they can be prosecuted for murder or manslaughter, if appropriate, but a conviction under Section 5 would not necessarily lead to a further prosecution. The offence could stand alone. I recognise that the measures contained in this Bill were given some consideration at the time that the 2004 Act was debated in this place. None the less, it is proper that we should give them further consideration now, and I offer my support to the noble Lord. We should not tolerate a situation where, on the basis that the victim has escaped death, a successful prosecution is endangered. This could arise, for example, where a victim might be too young to give evidence or might not be able to do so as a result of injury or fear.
I welcome the inclusion in the Bill of a maximum penalty for the extended Section 5 offence. We need to make sure that the punishment for the extended offence is proportionate to the harm caused. It is also appropriate that the definition of serious harm does not include psychiatric harm, as the risk of this would be much harder to identify, and we should not wish to deter people from caring for vulnerable adults for fear of prosecution for failing to foresee a psychiatric injury. I welcome the inclusion of transitional provisions in the Bill that will ensure that there is no retrospective effect for the extended offence. I believe that the proposed maximum of 10 years’ imprisonment for an offence of causing or allowing serious physical harm strikes the right balance, particularly in the context of a 14-year maximum sentence for causing or allowing death and when compared with sentences for other offences of grievous bodily harm.
We should all feel a heavy duty to do what we can to help the vulnerable in our society. Children and vulnerable adults have a right to feel safe and secure in their homes. Those at risk of serious physical harm from members of their own household should be able to look to the law for protection. The Bill is a useful step in that direction. I am pleased to offer the Bill my full support.
Baroness Howe of Idlicote
My Lords, I add my thanks and congratulations to the Convenor, my noble friend Lord Laming. As others have said, there is no one in your Lordships’ House or outside with greater knowledge and experience of this whole issue and no one more suitable to take the Bill forward.
When I first became a juvenile court magistrate in the 1960s, domestic violence was not even seen in most areas as a law-enforcement matter. It was something to be settled within the family. Even in the 1970s, at the beginning of my 20-year chairmanship of the Inner London Juvenile Court, dealing with domestic violence only gradually became recognised as an important part of UK law enforcement. Today, dealing with such violence is increasingly seen and recognised as a law enforcement priority.
I warmly welcome this Bill, which extends the 2004 Act to bring justice not only to those whose actions result in the death of a child or vulnerable adult but also where serious injury to the victim has occurred. I hope that this will go some way to increasing support for greater powers to deal with other forms of family violence. Barnardo’s tells us that the number of sexually exploited children it works with has grown by 8.4 per cent to 1,190 over the past year. The Bill will also raise awareness of what has sadly become an increasing problem; that is, the abuse and trafficking of women and children into this country for sexual and other forms of exploitation.
Considerably more people today are able to travel and trade in different parts of the world but groups of countries, such as the EU, make it far easier for citizens of member countries to cross borders. With mobile phones and the internet, there are increasingly effective ways of setting up and operating evil trades as well as perfectly legitimate businesses. That is exactly what has been happening in the UK. The numbers trafficked into the UK for sexual or domestic purposes have grown alarmingly and we need far more effective ways of dealing with this situation.
I want to mention two associated areas of violence which need to be taken more seriously. First, trafficking is taking place not only from other countries into the UK but within the UK. The internet is increasingly used by groups of UK traffickers for grooming vulnerable youngsters and then moving them round the country for sexual exploitation. We need far better communication between individual police forces as well as changes in the law to deal with this issue.
Secondly, there is a growing concern about the crime of stalking and especially cyber, or internet, stalking where the stalker uses the internet to hound—and I mean hound—his victim. A group of parliamentarians, of which I am one, has been taking evidence on this issue and will publish a detailed report early next month calling for new and far more effective legislation to deal with the situation. The stories of deaths and injuries that we have heard from victims of stalking—the majority of whom, but not all, have been women—are horrifying. Often, whole families have had their lives literally destroyed as they move from place to place trying to escape a stalker’s obsession. All that points to a clear need for far tougher legal action to deal with the situation, which I hope will follow from this Bill. Other noble Lords have mentioned areas such as female genital mutilation, which absolutely is part of the same theme.
In the mean time, I congratulate all those who brought forward this Bill. I add my congratulations to the Government, who have played a major part in speeding up the process. I will not delay any longer its swift progress through the Lords.
Lord Reid of Cardowan
My Lords, in the gap I want to add my voice to those who this morning have been commending and supporting this Bill. I have a confession: I was not scheduled to be here. Through the wonders of modern telecommunications, I happened to listen to the opening speech and changed my arrangements in order to be here. On hearing the discussion of wrongs of commission and omission, it seemed that by that definition it would be a wrong of omission for me not to be here, partly because when I was Home Secretary, which I suppose is a declaration of interest, I felt a degree of impotence and frustration when watching the expedient use in the courts of the blaming of the other party and thus the avoidance of justice.
It will be known to all noble Lords that I did not always agree with every nuance of every utterance of every judge throughout that period. But, having listened to the noble and learned Baroness, Lady Butler-Sloss, I thought that she gave a perfect encapsulation of the reasons why we should support this Bill.
There is a broadly moral basis in our responsibility to support those who are least able to defend themselves and sometimes to speak for themselves. But that is not the precise reason for supporting this Bill. It is a matter of justice in allocating responsibility to those who are guilty of omission, although we should never forget the many cases of women—it is mainly women who are involved in this—who, as the noble and learned Baroness, Lady Butler-Sloss, said, are entirely dependent financially and emotionally, and perhaps out of fear, on the male partner. Ultimately, the responsibility for someone who is even more vulnerable—the child or the incapacitated adult—overrides that.
Basically, as someone who has had to preside over the broad custody of the execution of some parts of justice in this country, I say that this is way overdue. I congratulate the people who have brought it in. I wish that previous Governments had made such an amendment but there are rarely occasions when the country, both Chambers, all parties and the whole cross-section of individuals in Parliament agree on an issue. If there was one, this is it and I hope that it gets a fair wind through this House.
Baroness Gale
My Lords, I thank the noble Lord, Lord Laming, for bringing this Bill before us today. As other noble Lords have said, with his vast experience in this field, there could be no one better. I thank other noble Lords too for their contributions. It is obvious that there is support for this Bill all around the House, as was the case in another place. The 2004 Act is very important and has proved to have worked well.
My noble and learned friend Lady Scotland took the then Bill through your Lordships’ House. In Committee, the noble Baroness, Lady Walmsley, spoke about the Law Commissioner and the NSPCC’s concern about cases where children were seriously harmed. She suggested that it was unacceptable to leave no remedy for these cases. My noble and learned friend said:
“In looking at this, I am conscious of the magnitude of the step we are already taking in our proposals in terms of attributing responsibility to those who do not already have a duty of care to a vulnerable child or adult. We are breaking new ground with this offence. Offences that result in the death of the victim have always been viewed in our legal system as particularly serious and meriting unique treatment. This makes a natural and appropriate starting place for extending the bounds of responsibility in the way we propose. I am not ruling out revisiting the question in the future, when we have seen how the new offence works in practice, and possibly extending it to serious harm. But I am very reluctant indeed to do so at this stage. We should be aiming for something clear, simple and well focussed initially to add to the statute book”.—[Official Report, 21/1/04; col. GC 341.]
That was in 2004 and, indeed, it was breaking new ground. It also recognised that time was needed to see how the 2004 Act would work and that there would be the need to revisit it in the future.
The law now deals with the death of a child or vulnerable adult at the hands of parents or other members of the household, and no longer can they escape justice by remaining silent. I believe that everyone will agree that the Act was the correct way to proceed in 2004, but now in 2012 it is time for us to look at it again, as the noble Lord, Lord Laming, has proved with the cases he cited, where children or vulnerable adults have received serious physical injuries. At present, perpetrators escape justice simply by remaining silent, which proves that there is a need for the Bill before us today. It will close a gap in our legislation. The data that the noble Lord, Lord Laming, shared with noble Lords today show clearly that there is now a need to amend Section 5 of the 2004 Act. Eight years on since its passing, now is the correct time to take action. Were a Labour Government in office now, I have no doubt that we would either have brought forward legislation or would be supporting a Private Member’s Bill of this nature. So we fully support this Bill and look forward to working with the noble Lord, Lord Laming, to ensure its smooth passage through your Lordships’ House.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, first, I thank the noble Baroness, Lady Gale, for that promise of Official Opposition co-operation, and I fully accept what she said about the earlier Act. It was a unique step that broke new ground. The job of the Opposition at the time was to press the Government of the day, and the job of the Government of the day was to make a judgment about how the issue should be dealt with. The noble Baroness, Lady Gale, quoting the noble and learned Baroness, Lady Scotland, said that it would be revisited at an appropriate time. As a number of noble Lords have said, including the noble Baroness, Lady Gale, and the noble Lord, Lord Laming, when he introduced the Bill, now is the time. I am most grateful to all noble Lords who have contributed to the debate.
In his brief intervention, the noble Lord, Lord Reid, emphasised the difficulty that Ministers face in dealing with these issues. They are extremely emotive and need to be addressed with due proportionality. The noble Lord and the noble and learned Baroness, Lady Butler-Sloss, and indeed the noble Lords, Lord Lester, Lord Cormack and Lord Sheikh, raised the question of whether this Bill is proportionate. I have no hesitation in repeating the assurances given by my honourable friend Crispin Blunt in the other place about co-defendants:
“If one of the defendants has been the victim of, or a witness to, domestic violence, the steps that that defendant could reasonably have been expected to take may be more limited than the steps that someone not suffering or witnessing the violence could reasonably have been expected to take. Depending on the facts of the case, the court may find that it was not reasonable for the defendant to take some of the steps that might otherwise have been available to them. The same principles will apply to the extended offence. In other words, the offence will be sensitive to the circumstances in each case”.—[Official Report, Commons, 21/10/11; col. 1184.]
That addresses the point which has troubled a number of noble Lords.
Several speeches went far beyond the scope of the Bill: stalking, trafficking, forced marriages and genital mutilation. All those are serious and important issues and none the worse for being given an airing in this Second Reading debate, but the Bill is specialist in its intention. I add my tribute to the noble Lord, Lord Laming. The comments made by the noble Lord, Lord Cormack, the noble Baroness, Lady Howe, and others made it clear that this country is in his debt for the contribution he has made to the intensely difficult and emotional issue of violence against children and vulnerable adults. I am honoured to be part of a debate that has been initiated on an issue like this.
Likewise I pay tribute to Sir Paul Beresford in the other place. The noble Lord, Lord Elystan-Morgan, said that we are all in his debt. Sir Paul already has a very distinguished parliamentary CV, but taking the Bill through the other place and getting it this far, with all the tribulations that Jack Straw has referred to, will be a badge of honour on that CV for the rest of his life. We are very grateful to Sir Paul for the work that he has done. As for the role of the Government, I shall treasure the tribute paid by the noble Lord, Lord Elystan-Morgan, and hope that it is the forerunner of many to come, but I will not hold my breath.
On the co-operation of Sir Paul, I should also put on the record that we have worked closely with him through the Commons stages of the Bill and we are satisfied that, as amended in Committee in the Commons, the scope of the offence is restricted to what is needed to fill the gap that a number of noble Lords saw and which was acknowledged in the original Bill. The original Bill has worked and it is right to extend it, and that is what we are trying to do today.
The offence in Section 5 of the 2004 Act—causing or allowing the death of a child or vulnerable adult—was introduced by the previous Government in 2003. Under the law as it then stood, if a child or a vulnerable adult suffered a non-accidental death and it could be proved that one or more members of the household had caused the death, but not which of them, none of them could be convicted of a homicide offence. As has been explained, that is what the 2004 Act addressed. The aim of the Section 5 offence was to remedy that injustice. As the noble Lord, Lord Sheikh, and others have pointed out, it was used successfully in bringing charges against those who had abused baby Peter Connelly. The crucial aspect of the Section 5 offence is that the prosecution need not prove whether the defendant is responsible for “causing” or “allowing” the victim’s death. This means that it is much harder for those co-accused of the death of a child or vulnerable adult to evade justice by virtue simply of remaining silent or of blaming each other.
However, we know of cases where, although it is clear that serious injuries short of death suffered by a child or vulnerable adult must have been sustained at the hands of one of a limited number of members of the household, there is insufficient evidence to point to the particular person responsible. In such cases, it may not be possible to mount a successful prosecution. Sometimes the victim may be too young to give evidence, or too severely injured or afraid to do so. But offenders in such cases should not be able to escape justice because the victim has escaped death. We therefore agree that it is right to extend the Section 5 offence in the way proposed by this Bill.
Broadly speaking, the Bill extends the offence by inserting references to “serious physical harm” at appropriate places in Section 5 of the 2004 Act so that the same conditions which apply in the case of causing or allowing the death of a child or vulnerable adult will also apply in the case of causing or allowing serious physical harm. In particular, the extended offence will be limited to cases where the victim has died or has suffered serious physical harm as a result of an unlawful act; it will apply only where the victim was at significant risk of serious physical harm, and only to members of the victim’s household who had frequent contact with the victim, and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim, and to have protected the victim from such harm. The extended offence will not apply to a death or serious physical harm which results from an accident or from natural causes, nor will it apply if there was no reason to suspect a risk of serious physical harm. I hope that that gives some assurances to noble Lords who have expressed concerns about the proportionality of the Act.
The noble Lord, Lord Sheikh, welcomed the provision in the Bill for a maximum penalty of 10 years’ imprisonment for causing or allowing serious physical harm. The Government believe that this is proportionate when considered against the maximum penalty for causing or allowing death, which is 14 years’ imprisonment, and against those of other offences of grievous bodily harm.
The noble Lord, Lord Elystan-Morgan, gave a welcome tutorial on Section 6 procedures. However, perhaps I may make a small point on procedure to so distinguished a judge. There are times when I thought he thought he was appearing before the noble and learned Baroness, Lady Butler-Sloss, in that he addressed her directly when making these complex legal arguments. I know that old habits die hard. The points he made on these procedures were pertinent and I shall read Hansard carefully, take advice on them and see what we can do in response.
The evidential and procedural provisions are in Clause 2. They are similar to those in Section 6 of the 2004 Act and apply to the offence of causing or allowing serious physical harm in the same way that Section 6 applies to the offence of causing or allowing death. Section 6 of the 2004 Act modified certain evidential and procedural provisions on alternative charges in trials involving the Section 5 offence. The modified procedures apply where a defendant is charged with a Section 5 offence and with murder or manslaughter in the same proceedings and in relation to the same death.
Briefly, there are two main changes in normal trial procedures, a point raised by the noble Lord, Lord Sheikh. The first change means that during the trial a submission of no case to answer on the murder or manslaughter charge is delayed until all the evidence is heard, both from the prosecution and the defence, rather than taking place at the close of the prosecution case, again a point to which the noble Lord, Lord Elystan-Morgan, drew attention. The second change concerns the drawing of an adverse inference from silence in court. Where a defendant refuses to give evidence in court, any adverse inference that may be drawn in relation to a Section 5 charge may also be drawn in relation to the murder or manslaughter charge, even if there would otherwise be no case to answer on that count.
These changes to normal trial procedure are intended to encourage defendants to give evidence and to ensure that the more serious charge of murder or manslaughter remains available if evidence emerges during the trial as to who is responsible for the victim’s death. In other words, the aim is to identify the person who caused the victim’s death or injury so that defendants can be convicted and sentenced according to their culpability.
The Bill applies similar evidential and procedural provisions to the extended Section 5 offence. However, in keeping with the extraordinary nature of these provisions, they apply only to the more serious offences that are likely to be tried with the extended Section 5 offence. So, in the context of causing or allowing serious physical harm, the procedural provision would be limited to cases where the defendant is charged with the extended Section 5 offence and with either a serious assault offence under Section 18 or Section 20 of the Offences Against the Person Act 1861—another point made by the noble Lord, Lord Elystan-Morgan, which, again, I would like to take advice on—or with attempted murder under Section 1 of the Criminal Attempts Act 1981. As with existing offences, the modified procedures would apply where a defendant is charged with the extended Section 5 offence and one of the other offences in the same proceedings and where the two offences arise from the same serious physical harm caused to the victim. These explanations will appear in Hansard and I hope that they will be read as being the desired but proportionate extension.
The noble Lord, Lord Loomba, reminded us of our responsibilities under the Convention on the Rights of the Child. Every time one of these cases arises it causes real indignation and often fire is directed at the authorities. I remember a director of social services who was in the centre of one of these media fire storms saying to me, rather ruefully, “You know, no social worker has ever been convicted of the death of a child and yet they have to take these awesome responsibilities on behalf of us all”. The Bill is an attempt to amend and extend a good law to ensure that those responsible for these terrible crimes bear the responsibility and face the full force of the law.
The noble Baroness, Lady Howe, said quite rightly that we have come a long way since the term “a domestic” meant that the police and the authorities did not take much interest in what was going on behind closed doors. The Bill is an extension of the increasing commitment of society as a whole to ensure that these crimes do not go unpunished and that for those who are complicit in cruelty to and abuse of a child or a vulnerable adult, to use the words of the noble Lord, Lord Cormack, there will be no hiding place.
I am very pleased to have taken part in the debate and to be able to say on behalf of the Government that we wish the Bill well.
Lord Laming
My Lords, I thank the Minister for his helpful and encouraging comments. I also thank government Ministers in other departments for warmly supporting the Bill and for their generosity in allowing us to have the benefit of the help of their officials.
We have been treated today to one of the great merits of your Lordships’ House—outstanding and well-informed contributions from all sides of the House in favour of our principal concern of safeguarding children and vulnerable adults. Such is the distinction of the contributions and the Members who made them that it would be presumptuous of me to even comment on the wisdom of what they have said.
As the House knows, the Bill was ably steered through the other place by Sir Paul Beresford. That being so, I felt distinctly apprehensive this morning about taking on that responsibility in your Lordships’ House. I am therefore particularly grateful to all noble Lords who have spoken so helpfully and constructively. It is clear that my anxiety was misplaced.
There are, of course, still hurdles to be overcome and some way to go before the Bill reaches the statute book. At this stage, I thank all noble Lords most warmly for the contributions that they have made and the support they have given. I invite the House to give the Bill a Second Reading.
Public Services (Social Value) Bill
(12 years, 10 months ago)
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Lord Newby
My Lords, it is a privilege and pleasure to introduce this Second Reading debate. In doing so, I declare an interest as chair of Live Sport, a community interest company which has contracts with public sector bodies.
The background to the Bill is that it was introduced in the Commons in November 2010 by Chris White, MP for Warwick. As a new MP, he was fortunate enough to come very high in the ballot for Private Members’ Bills and decided to adopt a measure which would have real impact. He steered the Bill through the Commons with determination and conviction. The fact we are debating this measure today owes a huge amount to him.
I am also grateful for the support that the measure received and continues to receive from the Opposition and, of course, from the Government. Without the enthusiastic support of Nick Hurd MP, the Minister responsible for this measure in the Cabinet Office, the Bill would have failed because, in order to gain overall government support, it was necessary to gain formal support from across the whole of Whitehall. Not surprisingly, that took a great deal of effort.
The Bill before us today is mercifully short but has the potential to transform the way in which public bodies procure services. It requires them, for the first time explicitly, to consider how what is proposed to be procured might improve the economic, social and environmental well-being of the area to be covered by the contract—that is, the social value of it. By public bodies is meant all those English and some Welsh bodies covered by the Public Contracts Regulations 2006, which includes local authorities, government departments, NHS trusts and a plethora of other bodies including your Lordships’ House. In effect, the Bill applies to the whole of the public sector.
Why is the Bill necessary and what benefits will it bring? The truth is that the Bill should not be necessary. The regulations just mentioned allow a public body to choose a supplier whose tender is the most “economically advantageous” and then defines economically advantageous to include factors such as environmental characteristics and quality as well as price. There is therefore nothing in theory to prevent a public body assessing the social value of competing tenders as part of the procurement process. Some local authorities already do this—for example, Camden, Durham and Wakefield—but they are a small minority. There is a strong tendency among public sector procurers to be risk-averse and conservative in their choice of suppliers. The old adage that nobody ever got sacked for buying IBM applies in modified form with large, traditional suppliers being the default option. This Bill seeks to challenge that mentality by requiring procurers to look beyond price—while obviously still paying due regard to it—and ask what social value particular suppliers could bring to the community.
What do we mean by social value and why is it important? Social value is really the added value you can get when a supplier, as part of fulfilling a contract, also contributes to the public good in ways that go beyond simply meeting the basic contract terms. The best way to think about social value is to look at some examples of what it means in practice. Typical examples might be a mental health service which employs people with a history of mental health problems to deliver the service, a transport company that tenders to run bus services and offers to provide added value through the delivery of a dial-a-ride service, or a housing management company which wins a contract to undertake property maintenance work and provides social value by committing to employ local apprentices.
It therefore surely makes sense for the public sector to seek such added value at any time and in all circumstances, but in the current economic environment this clearly assumes greater than ever importance. For by adding social value, a provider also contributes to broader public policy aims, whether in the sorts of ways set out above or by having a more holistic approach to public sector provision in an area as a whole—an issue that I am sure will be touched on by the noble Lord, Lord Mawson, later in today’s debate. In doing so, providers provide the state with overall greater value for money than under a more narrow, commercial approach.
There are a number of reasons why social enterprises are likely to provide this added value. They tend to have a stronger focus on users than other providers. They are often extremely innovative and flexible. They reach parts of the community that traditional providers sometimes cannot reach. And very importantly, they have high levels of public trust. At a time when some major public sector procurers, particularly in local government, appear to be making cuts that disproportionately hit the charitable and social enterprise sector, I hope that this Bill will go some way to cause them to reconsider whether the approach they are now adopting really results in best value for the taxpayer.
It might be useful to illustrate both what is possible when a social enterprise is given the chance to run significant programmes and also what constraints currently exist to the sector expanding. I should like to do so by reference to the leisure and sports sector. Local authorities’ leisure services have often been a Cinderella service and the ones most likely to be cut in times of economic downturn. They have not always been run in the most efficient way. However, in many areas the situation has been transformed by the contracting out of these services to local social enterprises. Just about the first and now most prominent of these is GLL, Greenwich Leisure, which, having started running the leisure facilities of Greenwich Council, now operates across London and beyond. GLL was recently in the news for winning the contract to manage two of the principal legacy venues of the Olympic Games—a clear demonstration of its track record and capabilities. GLL has succeeded like any good business by having a clear focus on quality provision but it has done so in ways that maximise the social value of what it does, particularly in the training and employment of local people—often young people with relatively few qualifications. Its example has been followed up and down the country, from Cornwall to Inverness, by local sports trusts, which have undoubtedly improved leisure facilities for the whole community in circumstances where any other business or organisational model would probably have failed.
The sector now provides some 30 per cent of public leisure centres in the UK and it is growing. But it feels that it could do more. A number of things constrain growth, including access to finance and management capabilities. One of the most pervasive problems is the process of bidding for and winning contracts. This is often an extremely frustrating, time-consuming and expensive business. A number of initiatives of government are trying to simplify the procurement process and help reach the target of 25 per cent of public sector contracts going to SMEs—a target that I believe is some way from being met. This Bill will play its part in weaning many procurement departments off a procurement process which can be blinkered and short-sighted. What applies in the leisure sector applies across public sector procurement.
In its initial version, the Bill related specifically to social enterprises because mutuals, co-ops, charities and community interest companies are by definition likely to be best able to provide this added social value. However, in discussion it became clear that many local companies—not least family-run businesses—also add social value and that it would be a mistake to exclude them from the scope of the Bill. The original version of the Bill also required the production of national and local social enterprise strategies. This idea did not find favour with the Government and was dropped in the interests of getting the Bill through the Commons and on to the statute book. The Bill now contains no explicit reference to social enterprise even though that is the sector to which it is principally aimed. I hope and believe that the single biggest beneficiary will be the social enterprise sector, simply because, as I have already said, organisations in this sector as a matter of routine deliver wider social value.
That is why the Bill is so strongly supported across the sector. In the run-up to Third Reading in the Commons, Social Enterprise UK, which has played a major role in supporting the Bill through its parliamentary progress and to which I pay tribute, co-ordinated a letter of support from the CEOs of 14 voluntary and social enterprise umbrella bodies. It said:
“We firmly believe that transforming procurement and commissioning is the best way to deliver effective and efficient public services, and if passed into legislation, the Bill will play a key role in enabling social enterprises and small businesses”,
to compete for public sector contracts.
Signatories to that letter included the CEOs of ACEVO, NCVO, Co-operatives UK, the Race Equality Foundation and Children England.
The Bill itself is easily described. Clause 1, which takes up 80 per cent of the Bill, states that, as part of the procurement process, which it defines, a public authority must consider how what is proposed to be procured might improve the social, economic and environmental well-being of the relevant area and how the procurement process itself might be undertaken so as to secure that improvement. It requires the authority to consider whether any specific public consultation should be undertaken. It excludes Scottish and Northern Irish authorities and those Welsh authorities whose functions are wholly or mainly Welsh devolved functions. I hope, incidentally, that the Governments of Scotland, Wales and Northern Ireland will adopt a similar measure in due course. The clause also explains that the authorities covered by the Bill are those covered by the Public Contracts Regulations 2006, the principal guidelines for public procurement in England and Wales. The remaining clauses are technical.
No single measure is going to transform the way in which public bodies procure services. Habits are deeply ingrained and innovation is routinely spurned. But as a country we must set our sights higher to ensure that public services really serve local communities by delivering social as well as financial value. This Bill will be a powerful step in that direction. I beg to move.
Lord Wei
I am grateful to my noble friend Lord Newby for sponsoring this Bill, and thank the Government for their generous support for it, which is most welcome. I speak as one with a passionate interest in the content of and context behind this Bill, which I wholeheartedly support, not least because of my prior and ongoing work in fostering scalable social enterprise, in which I declare an interest, as well as more specifically being an adviser to the Community Foundation Network, a movement that seeks to enable giving at the local level, often alongside local and national commissioners.
I welcome the intention behind the Bill to promote engagement with and support for social enterprise, and want to focus my remarks on the suggested amendments to the process of commissioning public services in it to ensure that social value is taken more into account.
Some might question, wrongly in my view, why this Bill is necessary, given that, as has already been mentioned, the law already technically provides the flexibility for the public commissioning of services on a holistic basis. Indeed, many public bodies and commissioners recognise that the value of work tendered out has to be about more than saving money in the short term or satisfying minimum statutory requirements, and must take into account the other forms of value without which society fragments and costs for all become greater.
Such smart commissioners recognise, particularly in light of what we have witnessed dramatically throughout the financial and social crises that have marked recent years, that we need to try to cultivate and live in at least three kinds of economy, each with their own kind of value. First, there is the global economy, based on financial transactions, which encompasses everything from tax and spending to trade and investment, and so on. Secondly, there is the reciprocal economy, or what Avner Offer, paraphrasing Adam Smith, calls the economy of regard—that sense of community, however configured, in which we derive mutual support based on principles of reciprocity. Thirdly, there is the gift economy, driven by who we are, what we believe is right and wrong, and what we feel our call and passion is that compels us to help others with no expectation of reward or even recognition.
If we exist only in one of these economies, we become vulnerable when hard times or sudden changes come along, like a wrecked ship with only one section in its hull. If we cultivate all three, we become resilient, like a ship whose hull has multiple sections, able to draw upon funded support from the state, jobs or savings, on the support of our community, and on the support of friends, partners and fellow believers in our hour of need.
Smart commissioners intuitively try to minimise the damage to each of these economies in the way they tender, while promoting their autonomy, sustainability, and the innovation that comes when such economies or spheres overlap and work together rather than apart. Smart commissioners recognise that value includes but extends beyond that which is purely financial today. However, despite the flexibility already enshrined in law to enable smart commissioning, and despite the best efforts of smart commissioners, there remain too many people, I am afraid, who tender out contracts that conform to a more narrow definition of value—a definition that is, to put it crudely, too often about who can apparently deliver the most output for the least money and/or who has the best financial backing, irrespective of their ethos or approach, or who has the best track record of supplying to the public sector.
This is a definition that too often unfairly favours the supplier most adept at writing loss-leading bids, which may be subsequently renegotiated after they have been awarded over those that provide good honest value; the supplier who often has the best private sector backing over those such as charities or mutuals, which have limited reserves financially, even though they have ample reserves from the community of time, networks and skill; or the supplier who is the incumbent over the new market entrant on the basis that one is easier to manage than the other.
This is a definition that may seem to save money in the short term, and that apparently lowers risk, but that costs us more in the longer term, financially and otherwise, and potentially increases long-term systemic risk, as witnessed in major public sector procurement scandals that have arisen from time to time, when risk aversion or fear creates itself over time risk and moral hazard on a large scale—for example when suppliers become to big to fail, to negotiate better prices with, or just to lose.
In many such cases, the answer is to not use commissioning at all but to co-produce solutions or foster citizen-led services without using any or much money, just its power to convene through, for example, matched grants; or to embark on joint ventures where other partners can share the risk of managing new, small, and local suppliers—John Lewis partnership style. However, when commissioning remains the best way forward, this Bill will provide a much welcome nudge to get commissioners to consult properly and to consider the social benefits or otherwise of services that they are about to procure, not generally then to ignore them, which would be unwise, or even automatically to favour the non-monetary over the monetary forms of value, which is equally unwise, given our urgent need to reduce the national deficit, but to try to seek out where possible the solution that is best value over the short and long term financially, and that also can bring benefits of a non-financial nature—the win win rather than the either/or.
There are many areas of commissioning in which this opportunity for consideration would be of benefit. Central government procurement is a key area in health, work and pensions, and transport, to name but a few, where reductionism is rife and long-term value is not always taken into account. In an era of local authority spending restraint and de-ring-fencing, this Bill and its focus on the smart commissioner has heightened importance. Had it been in place earlier, perhaps we would have seen fewer or at least smarter reductions than those that have occurred in some local authorities, which have disproportionately targeted charities and social enterprises, as well as local sustainable businesses, and indeed much loved and valued local public services.
As an advocate of the big society, I have welcomed this Bill from the moment I first set eyes on it, and I am glad to see that it enjoys healthy cross-party support in both Houses. The direction of travel that the Bill exemplifies represents another example of the kind of shift that we need to see, putting more control into the hands of the community and those who are community minded and not just of vested interests, who have monopolised power for too long. It represents a crucial first step in making commissioning more citizen-orientated and less risk-minimisation orientated. I look forward to seeing other concrete future measures beyond this one, such as the power for citizens to recall suppliers in extreme cases, more commissioning that encourages collaborative work between suppliers and not just competition, and measures to make more joint commissioning the norm rather than the exception not just across the public sector but alongside the private and voluntary sectors. But for now, I can only recommend that we pass this Bill speedily.
Sometimes Conservatives are perceived unfairly not to care much about society, given our convictions about the importance of sound finances and their impact, good or otherwise, on future generations and our sustainability. But my honourable friend in the other place, Chris White, has shown how on the contrary Conservatives are actually on the whole socially responsible, caring, and innovative in thinking about how we use the scarce resources that we now have to maximise social value for the benefit of us all. For that, Chris deserves our thanks.
Baroness Hayter of Kentish Town
My Lords, first, I join the noble Lord, Lord Newby, in congratulating Chris White on having brought this Bill forward. He and I are fellow trustees of the Webb Memorial Trust; I have a feeling that Beatrice Webb would approve of this measure. I should also declare my interest as a trustee of a number of other charities, including one that deals with people with drug and alcohol misuse, which may well be able to take advantage of this Bill should it become an Act. It is not in that capacity that I speak but I most warmly welcome the Bill, as I believe it provides a fantastic opportunity to reform public sector procurement. In doing so, it will give thousands of social enterprises, voluntary organisations and charities the chance to provide services in their own communities. In the last year, the public sector must have spent tens of billions of pounds procuring services at a local and national level. This Bill will open up these contracts to voluntary organisations and charities at a time when, given the present economic situation, many are struggling—despite the great value that they offer to society.
I have a great belief that at all times, but particularly in today's economic environment, public money should always be used in the most effective way possible. Very often, the most effective way also helps to support the voluntary sector because of what it can bring to the table. Social enterprise, motivated by commitment but run on sound commercial lines, is an invaluable asset, but often such bodies face unfair competition. We therefore need to level the playing field to ensure that it is not just those large corporations that can bid for and win contracts, sometimes simply by spending the most on the commissioning process. Rather, we need to focus, as has already been mentioned, on quality of service delivery in output and effectiveness, in local or sectoral engagement, in expertise, in voluntary, user or consumer input, and in accountability. By including more social enterprises, voluntary organisations and charities in public sector provision, we can see quality improved and, in the longer term as well as in the short term, costs reduced.
This Bill makes really quite a simple change, but one that could be profound. Under it, the concept of value for money will not be diminished but will be widened to include social value. That means that instead of just considering who is providing the services and how cheaply they claim to do it—often, it is not quite as cheap as they claim—public bodies would also look at the additional benefits that would be derived if the service was provided by more innovative organisations. There are, as we have heard from the noble Lord, Lord Newby, examples across the country, including in our own area of Camden, where local authorities have adopted social value-led approaches in commissioning and with great success.
This Bill seeks to ensure that such benefits are spread across the country and that all organisations have to engage in similar smarter commissioning processes. It also stipulates that public bodies need to consider consultation when looking at implementing social value in their commissioning process. This is central, as social value will mean different things in different communities and in the different types of services that are being provided. I hope that the Bill will be passed, and if it is I hope that public bodies will consider particularly this clause about consultation and act in the spirit of openness that is at the heart of the Bill.
The Bill also allows local authorities to consider the whole locality when considering social value. This should allow the social impact of voluntary organisations and social enterprises to be appropriately assessed, so that their good work across and within our communities can be considered when public bodies are looking to increase social value. This could also have a positive impact on local job creation. In many parts of the country, the public sector remains a considerable source of employment. By ensuring that local employment opportunities are considered as part of social value in the commissioning process, the Bill could help to ensure that we can get as much out of the public’s money as possible. It is for this reason that the Bill has attracted tremendous cross-party support, as well as from numerous national organisations, as the noble Lord, Lord Newby, has mentioned.
Time, however, is critical as we rapidly—I think it is rapidly—approach the end of this parliamentary Session. We need to move quickly if this invaluable Bill is not be lost. If it was to be lost, that would significantly dampen morale in the voluntary and third sectors, which are going through tough times at the moment. The aim of the Bill, as summarised by the noble Lord, Lord Newby, in moving this Second Reading is to require public authorities to consider how a service that is being procured,
“might improve the economic, social and environmental well-being”,
of an area. This is an objective that we must all share. I therefore hope that your Lordships’ House will act in the spirit of consensus and ensure that this Bill receives a swift passage.
Baroness Scott of Needham Market
My Lords, I thank my noble friend Lord Newby both for picking up the mantle of this Bill and for the work he does on the All-Party Group on Social Enterprise. It is of course a fact that all providers are able to think about social value; it is also a fact that most of them do not, which is where there is a real gap and a need for social enterprises. There is a lot of talk about social enterprise, mutuals and not-for-profit at the moment, but it is interesting how many misconceptions there are about the sector. People think that somehow it is an offshoot of the voluntary sector; that social enterprise is something new; that social enterprises are necessarily small; and that they do not have profit-making as an objective. Of course these things can be true, but not necessarily.
I was a board member of the Lloyd’s Register, a not-for-profit distribution organisation which works in the field of safety. At 250 years old it certainly is not new, and with over 5,000 employees it certainly is not small. Last year, I went to talk to the head of Hackney Community Transport, which was originally a small dial-a-ride service and is now a multimillion pound business and operates some commercial services as well. Both demonstrate the key identifiers of social enterprise, its public good and its not-for-distribution profit, but both have also demonstrated that social objectives can be good, sound commercial business.
However, those two examples are exceptional in the field. Most social enterprises are small and operate locally, and in this is both their strength and their weakness—a strength because they offer tailored services, based on a real understanding of the needs of service users; but a weakness because, as we have heard, they find it very hard to get a foothold in the market for public services, which is dominated by large enterprises. There is a wealth of evidence from around the country that small social enterprises—as well as small businesses—face often insurmountable hurdles in the public procurement process, so this Bill is designed to address that most significant problem faced by the sector.
I have to be honest enough to admit to some misgivings about this approach. I do not much like duties and requirements being piled on to local government by central government. We have had far too much of that in the past. The previous Government introduced a general well-being power to local government, and the coalition has gone further by introducing the power of general competence. We also have the Sustainable Communities Act, which is relevant in this area, as is the right to challenge introduced in the Localism Act. Local authorities have the powers required by this Bill and some use them, as we have heard, but many more do not. Given this legislative framework and the wealth of evidence about how beneficial this sector is, we need to think about why this is simply not happening. It may be because some are blinkered, as my noble friend Lord Newby said, but it also comes down to two other things: money and capacity.
Local authorities have been finding savings year on year for some time and face a very stringent settlement this year. Rightly, their priority is the protection of front-line services so they strip away back-office functions, which include the staff who work on procurement and managing contracts. With fewer people working in that area, public authorities find it easier to manage fewer, larger, more straightforward contracts rather than a plethora of smaller suppliers offering services that really have to be thought about. This is not just an issue for social enterprises; it is a major problem for small local businesses. It is even happening now in the voluntary sector; I have been watching as around the country small local voluntary agencies have been losing local authority contracts to large suppliers.
There is another problem for local authorities. When you outsource something, you have to keep the risk in-house. If the service goes wrong, the risk remains with the local authority. That explains the risk aversion that we tend to see in local authorities that the noble Lord, Lord Wei, so trenchantly referred to.
The attitude of public procurement authorities is understandable, though short-sighted. I am afraid of going down the route of compulsory competitive tendering. I have watched that process for the past 30 years, and at the beginning large savings and efficiencies were indeed made and the regime was judged a success. Over time, though, as the smaller in-house suppliers disappeared, competition in the market lessened to the extent that in some areas—waste and local buses are two that spring to mind—there is now very little competition left in the market. That is bad for the public purse and for public services, and we must not go the same way in the social enterprise and voluntary sector.
The Bill, and government support for it, would go a long way towards sending a message to public bodies that they can adopt a different approach that values local services with the added public value that they can bring. It is a sad fact that local service providers still look very much to Whitehall departments for direction.
There are problems with measuring social value—it is not straightforward—and that is another area where the Government can help. As well as initiatives that are needed to improve the social enterprise sector, such as the creation of the School for Social Entrepreneurs or the academy proposals being developed by the noble Lord, Lord Mawson, we also need to work with the public sector to learn most effectively how we can evaluate and assess social value so that these factors can be taken into account by the decision-makers.
We also need to learn how to think about and measure the benefits of social enterprise that are much more difficult to measure: the improved productivity that comes along when people are motivated by working to their own objectives and feel a direct sense of responsibility to service users, and the community benefits that come from people working who are active and engaged in their own service delivery.
Words of support are all very well but there comes a time when action has to be taken. Passing this Bill will not of itself make things happen, but it will be an important first step. If social enterprises, SMEs and local charities benefit from this approach and thrive, the larger commercial organisations will also begin to think more seriously about social value, and then we all win.
Social enterprise is unusual. It does not matter what your political philosophy is; there is something in it for you. It is about enterprise, social value and communities, and it is often good for the environment. I am sure that we can all join together to support not just this Bill but other measures to help this sector to grow.
Lord Mawson
My Lords, in speaking to the Bill I declare two interests: as a director of the social enterprises One Church, 100 Uses, a national regeneration agency, and of the Water City Festival CIC, which is based in east London.
I thank the noble Lord, Lord Newby, for introducing this Private Member’s Bill in the graveyard slot at this point on a Friday afternoon. It is in my view a most important Bill because it seeks to put its finger on a very important issue: public sector procurement and the culture that prevails within public service provision in this country.
We in Britain used to be known as a nation of shopkeepers. Today we need to become known as a nation of enterprising communities. A business is a community, as is a local school, a hospital, a village, a town, a London borough and even an Olympic Park. In a country that is nearly bankrupt, the real challenge that we face is how we now unlock the energy and enterprise within Britain's many and varied communities. How can we once again discover the entrepreneurial skills in our DNA—our inherent ability, which our Victorian ancestors were so adept at, of making something out of nothing? This is the key issue at the core of the Bill. If the next generation are both to survive the present harsh economic climate and to make something out of it for themselves and their children, then they have to become adept at creating something out of very little. Navigating the processes of public service delivery and procurement must help them and not get in the way. This is the big challenge of our day that underpins this legislation.
In the people of this country there is a sleeping giant waiting to be woken from its slumber. You can see this giant dozing in many of our communities. I see it daily in the dependency culture of some of our most challenging housing estates. I know this as a fact because I have spent a great deal of my life working in some of our most deprived communities and know what can happen when you wake the beast. The people who make a real difference in communities—the local chemist, the doctor, the head teacher, the social and business entrepreneur—are already there, but feel ground down in bureaucracy and the countless ideologies that we have built around our systems of government. For those practical people it is very difficult to find the energy to wake and engage with the outside world because moving the bedclothes has become so hard. Despite the rhetoric from a number of different Governments about removing red tape, in my experience it is getting worse, not better. Words are easy but actions are hard. We cannot afford bureaucracy any more: it is too wasteful.
I was with a successful small businessman recently whose family has created a flourishing shopping arcade that allows local people at small cost, in a very straightforward way, to open a small market shop and grow their own business. The culture is good and the relationships are healthy, but he tells me that every time the local authority officer appears with the keys jangling from his belt, he fears the worst—another set of requirements, forms to fill in and processes to go through that will increase his costs and, eventually, those of his traders. Social entrepreneurs experience exactly the same thing as this business entrepreneur, and it is stifling innovation and creativity.
I have just sat through the Health and Social Care Bill with its many amendments and listened to this Government, as I have listened to three previous Governments, telling me as a practitioner and entrepreneur how they are seeking to improve the health service. This Government, like the one before, are of course right to try and do so and their aspirations are correct, but the culture is not and neither is it changing. Just look at the number of people taking sick leave or retiring early in the NHS: good people who want to do a good day’s work. Already, despite the many amendments and words in your Lordships’ House, the experience of my colleagues on the ground, operating in the machine, tell me that it is business as usual in the NHS. They tell me that the same old faces, the same old ways of working and the same oppressive culture of the health service are bearing down upon them. There is a sense here and elsewhere that everything might seem to be changing, but the reality for practitioners is that they see little change—the culture is the same. There is a great difference between seeming and seeing.
The big issue that this Bill attempts to address is the culture of our public services in Britain. Its aim is, quite rightly, to create greater diversity in public service provision and to let loose these new emerging enterprising communities by creating flexibility, and that is exactly right. I was at a dinner recently with Sir David Varney, former CEO of Shell, chairman of O2 and HMRC. He has run some very large institutions in his time, both in business and in government. He raised the question of why it was that Governments, regardless of which party is in power, with all their resources, often in reality seem to achieve so little, yet social entrepreneurs and local enterprises seem to achieve so much with just one man and a dog. How can we grab hold of the dog’s tail and shake it? This is the big question—the David and Goliath struggle. When you raise these issues, older and wiser heads than me predictably give weary smiles because they have heard it all before and know how difficult it is in reality to do. That might be so, but someone needs to throw the stone to create the ripples.
The big change that this small Bill must seek to make is that of culture. How do you create an efficient culture within public service delivery and procurement? How can we get more for less? How do we empower, energise and truly engage with communities through our systems of procurement?
I have read the cross-party debate in the other place between Chris White, Hazel Blears, Nick Hurd and others. I do not intend to repeat their points. They are all right, and while there may be minor differences between them, they are struggling with this very important issue, and we must encourage them to continue to do so. I support this Bill because there is ample evidence, which has already been given in the other place, of how broader and more imaginative procurement can pay dividends. I do not propose to add to that evidence in this speech. I am interested in the more practical matter of how we build on and grow the evidence.
While this legislation is important, it will change little by itself, as others have said. Large companies will soon learn how to jump through the additional hoops. For example, an employer can say that it will employ local people, but what does that mean if it is just a local address on an application form? It could easily end up a bit like much of corporate social responsibility, with lots of bright consultants writing reports. Indeed, it could in practice make life yet harder for small businesses that do not understand the game. It does not have to be like this. There are already living examples of imaginative broader procurement processes using current legislation. It is the culture and purpose of the procurement process that is different in these specific situations and we need to make this the rule rather than the exception. The change in legislation can be part of the process, but we are deluding ourselves if we think it is an end in itself.
The last years of my working life are focused on building and extending the work that my colleagues and I have spent nearly 30 years doing, which demonstrates in practice, on the ground, what this debate means, be it through the development of a local street, creating a music and arts festival or the redevelopment of church buildings. We need to identify and champion good examples that challenge the internal logic of government systems. It is in practical projects that we can really understand the issues that the Bill seeks to address. We learn by doing, not by talking.
Procurement tends to be done by staff who are solely tasked with procurement or other financial management tasks. If we want to change procurement processes, we need to change the way procurement works. Procurement staff and those managing them have to understand and buy into the broader goals of the wider vision. This is partly achieved through training, events, publications and having targets that are wider than just financial rewards. However, it is broader than that. It is fundamentally about cultural change in organisations. Procurement is not easy or straightforward, and staff are often running to stand still. They need support if they are seriously to embrace a more nuanced approach, to think a bit laterally and learn different skills. This will take significant investment from somewhere. We are asking staff to embrace not just the letter but the spirit of a new law, and willingly to make their working lives significantly more difficult. If errors are made while they are learning this new approach, will they be praised for clearly experimenting? Innovation means mistakes; you cannot get it all right. However, too often, we are good at the blame game. Those who experiment and challenge redundant processes are often penalised because of the errors they make and what they might cost. This applies equally to the legal teams of public bodies, both in-house and those contracted in. Unless a “yes, you can” attitude is encouraged, little will change in practice.
Passing the legislation is the easy bit. If Ministers are serious, they need to bring together a modest number of public bodies that are committed to this journey and use them as exemplars. In my neck of the woods, the London Borough of Newham, what Sir Robin Wales, the mayor, is doing through his programme of using procurement processes to reduce dependency and create local resilience is a good example. The procurement process that we have just gone through at the Olympic Park Legacy Company for managing the Olympic venues and the Olympic park—here I must declare an interest as a director—is another good example. Soon we will be responsible for building five new villages. What an opportunity for the London mayor, his officers, and central government to learn from the many years of experience that some of us have had of working with local communities around the park. This is a chance seriously to get a grip on what works in practice and build on it. From where I sit, I can confidently say that there is a real appetite for this journey, but it will involve both London and central government seeing this work as a piece of innovation and giving us the space to operate and innovate. There is a long way to go.
Speakers in the other place have given good examples of public sector innovation elsewhere in this country. All these positive examples demonstrate that this is not just about London or party politics but about what works in practice and liberates enterprising people within our communities. I believe that change comes from within. It is not about a top-down or a bottom-up approach; change happens from inside out. The change I describe will happen only if we take in hand the outdated machinery of government and bend it to our will. This is fundamentally a practical task for practitioners and the Government would do well to point to them and celebrate their work. This is a job for the Brunels of this generation—the engineers and entrepreneurs. It is not a task for the faint-hearted or those Guardian readers who, in my experience, are all too content to analyse the world to death and comment from the sidelines through newspaper articles and government reports. Gird your loins for this practical task; it is time that we celebrated practical people.
As this new culture develops, other public authorities can then join the process. I therefore question whether Clause 1(3)(a) should read “may” rather than “must”. I worry that forcing public bodies reluctantly down this path will be counterproductive and that the evidence will therefore be inconclusive at best. Perhaps the legislation could move from “may” to “must” when there is a critical mass of public bodies that have chosen to adopt this approach. This would also mean that we need not include all procurement; purchasing paperclips may not be improved by this process.
Governments of all hues have, in my humble opinion, too often imposed approaches without experimenting with them first. Initial flexibility might result long-term in a more sensible, graduated approach. Change is always easier and more focused with the willing than with 10 pressed men. Culture change depends upon a willingness to embrace change at all levels. However, as I have said, tinkering with the legislation is only part of the wider process of change. Fundamentally, I have learnt that there is a strong correlation between long-lasting change and human relationships. Legislation might oil the wheels of change but it is people who move the wheels forward. These relationships take time to build and public sector procurement needs to make allowance for this. Too often, the length of the contract, particularly for those involved in social change, is too short: many are limited to one year or less.
These relationships are crucial to both the short-term and long-term success of projects. As my colleagues and I began to engage with St Paul’s Way, a dysfunctional street in Tower Hamlets, following serious violence five years ago—here I must declare an interest—I was not surprised to find that basic conversations were not taking place between the housing provider, the local school and the health centre, despite the rhetoric about joined-up thinking at the time. Once these conversations were initiated at all levels of the public sector structures, and relationships cemented, this street was seen literally to transform. We are now about to open a new social enterprise in partnership with some large corporate businesses to explore how we now build on and extend this enterprise culture in a housing estate formerly defined by dependency. It was a privilege to show colleagues from the House some of this work last week.
St Paul’s Way Trust School, formerly a failing school, has just been described by Ofsted as one of the 50 most improving schools in the country. Professor Brian Cox recently became the school’s patron because it now specialises in science. When I described to Brian our organic approach to change, he immediately described how the CERN experiment developed 40 years ago through the relationship of a few scientists who dared to think the unthinkable and do it together. It was very similar. The CERN experiment may well change our thinking about relativity and how we understand our universe. Brian and I, with colleagues, are now exploring how we might bring something of this shared narrative together at a summer science school at St Paul’s Way in July. I would be honoured for colleagues from the House of Lords who are interested to join me at this novel community science school. As scientists, possibly including four Nobel laureates, share the details of their experiments we will share our narrative about a 30-year experiment in community regeneration which has produced clear results. Our shared narratives have an inside-out approach in common that has human relationships at its core. Brian is interested in teaching science in the schools that we work with because he knows that science education is fundamental to the growth of our economy. The inside of one of the UK’s most challenging housing estates is an interesting place to begin.
The set of dysfunctional circumstances I met in St Paul’s Way is not unique. It is the norm. I have seen this waste of public sector investment replicated across the UK in Bradford, Glasgow, Manchester and elsewhere. The sleeping giant is resident there, too, but, unlike St Paul’s Way, we are not awakening it there. We are putting it to sleep. Fundamentally, this is not about new money, but about using limited money in new ways. We need to work with practitioners, enablers and successful entrepreneurs. Go with the stones that roll: with practical people who want to build the change in an organic way, one step at a time. Let us stop thinking policy, strategy and framework, and focus upon people and relationships.
I have two final, practical, points. First, often, joint procurement of integrated services would potentially produce better results. Procurement based on outcomes rather than prescribing the process is often more appropriate. Community Action Network, which I helped to found, developed an approach to using small, local community organisations to deliver contracts called “smart intermediaries”. If there is a will, it is often surprising how a way can be found.
Secondly, in relation to the voluntary and community sector, recent years have given rise to the service level agreement replacing grants. These SLAs are, however, very one-sided. On the one hand, they are effectively a contract. If the contract is not delivered as specified, then payment is withheld, which is reasonable enough. However, unlike a contract, the issuing party—local authorities et cetera—can usually vary the terms, terminate at short notice and pay late, all without penalties. As a result, when financial times get difficult, contracts, which are expensive to cancel, remain, while SLAs get cancelled. A local community group would argue that having a decent contract was a contribution to the social and economic well being of an area, which the Bill seeks to promote. Whether the commissioning body sees it like this is a different matter.
Colleagues in the third sector will know that the Government are serious about these issues when they begin to see these small, practical steps that strengthen their hand. The financial problems we face as a country today are actually a fantastic opportunity. Let us take hold of them with both hands.
Baroness Stedman-Scott
My Lords, we have been debating some very substantive Bills in the House recently. When I have gone to pick them up, they have been pretty meaty and weighty. When I picked this one up, I saw how brief it was. Nevertheless, it is very powerful, and we should not let its size in any way detract from what we are trying to achieve. I congratulate the noble, Lord Newby, on bringing the Bill forward. I am pleased to support and endorse it.
I must also declare an interest in that I am the chief executive of the national employment charity Tomorrow's People, and a trustee of New Philanthropy Capital. The House does not need me to reinforce the difficult social and economic conditions that we face; they are sadly all too apparent. However, I will reinforce the timeliness of the Bill and the opportunities that it presents to help improve the social and economic situation that society, communities and individuals face.
First, in any procurement situation there is an undoubted imperative to drive costs down. Whoever delivers public, private or charitable services should all be focused on this. That is beyond question. The opportunity that the Bill gives to us is to give as much credence to social value as to cost; my noble friend Lord Wei articulated this very well. If we do not do this, then we end up knowing the cost of everything and the value of nothing. Experience of this was relevant in the recent issuing of a social impact bond for which, when the application went in, as many points—indeed, if not more—were given to policies and processes as were to cost.
Clause 1(3) states:
“The Authority must consider… how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and… how, in conducting the process of procurement, it might act with a view to securing that improvement”.
In other words, procurement is opened up to consider what other value can be brought to the service. To do this, it is important for us to understand what social value is. It is suggested that social value is,
“the additional benefit to the community from a commissioning/procurement process over and above the direct purchasing of goods, services and outcomes”.
Noble Lords must forgive me for using a direct example from my own sphere of work. To get somebody into work is a great thing; keeping them there is the real success. Securing a job is an output; keeping it is an outcome. The additional social value can be quantified in terms of benefit payments saved, tax receipts increased and a reduction in other costs such as health, crime and government administration. I would even go as far as to suggest that there can be multiple social values created by joining up and delivering across more than one sphere of service or contract.
The Bill creates an opportunity for the voluntary sector to play its rightful part in the delivery of public services, and to be taken seriously. This opportunity must only become a reality on the basis of a proven ability to deliver to the standards and outcomes required. It is not what is said, it is what is done. It is not what is promised, it is what is delivered. I am sure that the sector can step up to the mark and meet this challenge.
In many cases, the voluntary sector is having a very difficult time at the moment. The Bill would open up opportunities which would help the sector to develop a sustainable business model. I am not for one minute suggesting that the sector should be given the opportunity as a divine right. You will find that the sector is responsive to the needs of its clients, communities and service users. It is innovative in designing viable, sustainable and deliverable solutions, and flexible in the way that it can respond and adapt to the social issues that society faces. Indeed, the voluntary sector is commercial in its determination to do the best possible job.
If I may, I would like to take a moment to focus on the designation of the voluntary sector, Some call it voluntary; some call it the third sector. I would rather, in the case of this Bill, like to hear it referred to as the not-for-dividend sector. I think that my noble friend referred to the phrase “not for distribution”. There is nothing wrong with making money; it is what we do with it. If the social value were taken into account when contracts were awarded, or even considered, there would be a social as well as a fiscal margin which could be reinvested in the service. The not-for-dividend sector is ready to partner with the private and public sectors to maximise true social value. People in our country are ready to invest in social impact bonds if the social value is added, quantified and taken into account. In achieving social value, quality must not be compromised.
In summary, I hope that the Bill will open up markets and revenue streams, increase choice for individuals and encourage, support and deliver job creation, particularly for those who live on the margins of society. When Lend Lease built the Bluewater shopping development, there was a great fear that people would just transfer from Lakeside to take the jobs. In fact, the local authority and others worked together to put out a tender to make sure that local people got those jobs. As a result of that, 1,200 local people got jobs in Bluewater who probably would not have done so otherwise. I would like to do the sums and add up the savings in benefit and other savings that were made and the tax receipts that were gained from that. I also hope that the Bill will engender collaboration between the business sector and the public sector and generate margins for reinvestment which will further the cause of social value. However, there will be challenges; for example, in regard to working capital and measuring and demonstrating social impact. The sector and others will have to concentrate on maturing the way in which they collect data and prove their ability. I pay tribute to Pro Bono Economics, which provides its services to organisations free of charge so that they can play their rightful part in this area.
In a time when we see many challenges and difficulties, the Bill would certainly go some way to creating opportunity and hope for the people we are all in business to serve. I fully support the Bill and hope that it makes speedy progress.
Lord Addington
My Lords, when your name appears towards the end of a speakers list, it is not unusual to discover that everything you wanted to say has already been said, often more eloquently than you could have done. Therefore, I shall not detain your Lordships' House for long.
This is one of those Bills where you ask yourself why on earth it has not been introduced earlier. Then you have a look and think that there was nothing to stop it being introduced earlier; so why has that not been done? The simple reason is that, until now, this subject was considered as something that was jolly good but which should be tagged on to something else. I think that the noble Lord, Lord Mawson, touched on that when he spoke about corporate responsibility in relation to many big firms. Indeed, we have all seen projects of varying quality and heard the associated razzmatazz about corporate responsibility. However, corporate responsibility has not been an essential part of the services we are discussing and the concept has not been open to challenge prior to the introduction of the Bill. I hope that the concept is also applied to non-traditional, first-choice suppliers; when you come out with an expression like that without thinking about it, you wonder whether you have been here too long. Such suppliers could offer models of best practice that may be absorbed by bigger groups.
Whenever you have a good idea and it is purloined by somebody else, you always cry foul, but as long as action is taken that is a good thing. I hope that the Bill, which is a short measure when compared with the huge Bills that we have discussed over the past few months, will help to start a process. Following the enactment of other good small pieces of legislation, battles have commenced in terms of enforcement, monitoring and making sure that people take them seriously. The Bill constitutes a good idea that has been given a few teeth. Whether those teeth are sharp enough, or the jaw that contains them is strong enough, we do not yet know. However, the Bill is a good start. We should see it as part of an ongoing process as opposed to an end in itself. Nevertheless, it is valuable.
Baroness Thornton
My Lords, it is a great pleasure to be speaking from these Benches in support of the Bill. I should begin by declaring my interests and relevant experience, first, as honorary secretary of the All-Party Parliamentary Group on Social Enterprise, under the wise chairmanship of the noble Lord, Lord Newby. I am also an ambassador to sporta, the trade body for the many leisure and sports trusts that have already been referred to in the debate. I am, of course, a lifelong co-operator—I am Labour and Co-operative. I was founding chair of Social Enterprise UK and for many years served on the board of Social Enterprise London. I was a trustee of Jamie Oliver’s Fifteen foundation and Training for Life, and I am now a patron of the Manningham Mills Community Centre—of which I am particularly proud, given that I am Baroness Thornton of Manningham. The centre is opposite the infant and junior school that I attended.
I agree with the noble Lord, Lord Addington, that at this stage of the Second Reading debate just about everything that can be said in support of the Bill has been said. However, it is important that from these Benches we record how grateful we are to Mr Chris White MP for choosing this subject following the Private Members’ Bills ballot. I confess that it puzzled me as to why and how a Bill that started life as a Bill for social enterprise now makes no mention of it at all. Indeed, two of its major aims were dropped. That presented some of us with a problem—having called it the “Social Enterprise Bill” for a large part of its life, we have had to rename it. As someone who has been working with social enterprises for many years, I went to find out what people thought about the fact that two parts of the Bill had been amended by the removal of provisions for a national social enterprise strategy and a duty on local authorities to engage with social enterprises.
I shall make one or two points about that. The first is that we should not lose sight of those aims and objectives and there is no reason at all why, nationally and locally, they cannot be done anyway. It is worth quoting what Mr White said about this. He stated:
“The social value section was the most important section of the bill. It is important that social value is included in as many contracts as possible. My bill is aimed at practically supporting socially responsible business practices. This is a step on a journey and I believe that the sector should be commended for taking a long term view of the benefits of this bill and not taking the view of ‘all or nothing’”.
We have indeed been on a journey in this sector for many years. I read with interest what Allison Ogden-Newton, the chief executive of Social Enterprise London, had to say about this issue because, like me, she was struggling with the idea of what one should call the Bill. She took, as she would have done, soundings among social enterprises in the London area. June O’Sullivan of the London Early Years Foundation wisely said that what she would like from the legislation was anything that removed procurement barriers such as a mandatory £20 million turnover to tender. She added that,
“getting the concept of social value into their”
—local authority—
“heads wouldn’t hurt”.
Amen to that. Mark Sesnan, the director of GLL, which manages 100 leisure facilities across the country and has one of the Olympic legacy contracts, said:
“Having social enterprise in there was powerful, but removing it is not terminal. We welcomed the bill because it asked for government to look for more than just price in contracts. If it still does that then that’s great, continuing to describe such activity as social enterprise would have been the icing on the cake”.
My noble friend Lady Hayter was right, as ever, when she said that we need to get a move on with the Bill because it is a progressive measure that we would like to see on the statute book before the end of the Session. We on these Benches will do nothing to hinder that process and we will be happy to do anything to help the Bill’s progress.
I have been supporting co-operatives, mutuals, social enterprises and voluntary organisations all my life—from joining the Bradford Co-op when I was 16 years old to helping to steer through this House legislation on the right to request in the NHS, as well as legislation on industrial and provident societies, charities and companies. I should like to draw attention to two examples of organisations where contracting and working with local government and the health service really works.
The first such organisation is just across the river. The Blackfriars Settlement, which many noble Lords will know, is a small community-based organisation that is surviving against all the odds. Its Art2Print social enterprise employs people with mental health problems and trains them in design and print. It is a partnership of funding from local authorities and money that the Blackfriars Settlement organises. It is doing a good job of building local print and design services for other local community groups and, more importantly, getting people who have had serious mental health problems back on the employment pathway.
Secondly, I mention my home town of Bradford, which has many social enterprises, many of which go back for many years. The Lighthouse Group in Bradford provides support for children and young people who have fallen out of the education system, and Urban Biz, which was formed in Bradford, is aimed at marginalised and disadvantaged groups, particularly those from African or African-Caribbean roots. Both those organisations depend on local government contracts and bodies such as the late, lamented Yorkshire Forward. Both are struggling at the moment, but offer the kind of value to their local communities that we have been discussing today.
All those bodies welcome and support the Bill, as do we. As I said, we will do anything we can to progress the Bill and add it to the legislative and policy framework that is helping to create a larger and more powerful sector in our economy for social businesses and businesses that add enormous social value.
Lord Wallace of Saltaire
My Lords, I am delighted to speak on behalf of the Government to support this small but significant Bill. We support it because it contributes to the ambitions of the coalition Government—which, after all, are not fundamentally different from those of our predecessor Government—to reform public services by ensuring that they achieve optimum value and promote economic growth, as well as strengthen relationships with communities.
The Bill requires relevant authorities to consider how to improve the social, environmental and economic impact of public service contracts at the pre-procurement stage. As noble Lords have noted, it requires commissioners to consider consulting on public services, thereby empowering communities to play a more active role in shaping them. It ensures that commissioners consider the full impact of services on the people they serve, and it will enable them to maximise the social, environmental and economic impact of public money. It does not change procurement law but sits within the existing procurement process. It does not undermine the requirement to award the contract to the most economically advantageous tender, nor is it at odds with the Government's value-for-money agenda and efficiency reforms, and by considering the full impact of a service it reinforces obtaining value for money in procurement and should help to improve the quality and efficiency of public services.
Several noble Lords noted that we are really talking about a long-term culture change and that we still face considerable obstacles in changing that culture. As I sit in the House listening to noble Lords talking about their commitment to localism but insisting that ring-fencing should be maintained on one subject or another—that the Secretary of State should retain full responsibility for the provision of public services and that Whitehall should intervene—I am conscious that we have not ourselves entirely gone through that culture change. As the noble Lord, Lord Wei, remarked, the Bill provides a nudge in that direction. Perhaps we need to recognise that some of us still need to be nudged. The noble Lord, Lord Mawson, remarked that regulation and form-filling still stifle innovation in this area. Centralisation is part of that, as we all know. All noble Lords will be familiar with Unshackling Good Neighbours, the report last year of the noble Lord, Lord Hodgson of Astley Abbotts, which attempted to tackle that in a number of ways, but we all recognise that we need a major culture change in this area.
After all, many of the public services with which government in any shape is concerned can succeed only if they are embedded in the local community. Bringing vulnerable people back within the links of a strong community is a necessary part of effective delivery. In probation and rehabilitation, for example, one group I have been involved with recently in Yorkshire is Together Women, with which the noble Baroness, Lady Thornton, may well be familiar. It is concerned with preventing young women being caught up in reoffending. It can and does save the public purse an enormous amount of money. It demonstrates that keeping people from being caught up in the prison process again is proving to be a considerable saving. That has not been easy to demonstrate. Indeed, I have been lobbying on their behalf to make sure that the Government fully understand the extent to which these unavoidably local bodies—they have to work with local people—provide help.
Mental health support and recovery, as a number of others have mentioned, is a similar activity. I was at the Bradford mental health re-employment awards lunch last Friday. The noble Baroness will be familiar with the Cellar project and a number of the other bodies that are working in that area. There are social enterprises raising money from their activities to fund what they do in partnership with local authorities. Similarly, many groups are already operating in care for the elderly. One needs to ensure when the government outsources activities that the vulnerable people are involved in their local communities. One of the examples pointed out to me is that if meals on wheels are provided by the elderly being brought into a local community centre to be fed, they can mix with each other, it is much easier to work with them and they are back to being involved in the community. That can contribute considerably to their continuing health. There is therefore the integration of service provision at the local level.
Close co-operation among different service providers on the ground can also improve effectiveness. My noble friend Lady Scott and I were extremely happy to be shown round the Bromley by Bow Centre by the noble Lord, Lord Mawson, last week in which the health and housing advice centres have a common counter. People who go to talk about particular health concerns may often be concerned about bad housing, which can be dealt with at the same time. The noble Baroness, Lady Stedman-Scott, also underlined the advantage of linking up across the different deliveries of local public services. I know very well from some of the issues that we have in Saltaire, which is not a problem village, that sometimes you have to deal with one bit of bureaucracy that says that something cannot be done and another bit of bureaucracy that says it has to be done. One has to lobby hard against that.
The Bill is a first step. It is part of a long-term process in an attempt to change the way in which government manages public services and co-operates with the not-for-profit or not-for-dividend sector. Where might we move on from here? The Government are now concerned with simplifying the procurement landscape and building the capability of commissioners and those concerned with procurement. We are considering ways in which larger contracts can be broken up into smaller lots where appropriate, and we are also planning a commissioning and procurement academy as a way of equipping commissioners and procurement authorities with the right skills and raising capacity. We are also hoping—this point was raised by the noble Baroness, Lady Stedman-Scott—to accelerate the measurement of impact. There are a number of ways in which we are concerned to improve the way in which to measure and collect data. We need to increase access to measurement tools and systems and the data that people need.
The legislation does not explicitly favour the involvement of social enterprises or any other particular form of provider in public service delivery. However, its focus on maximising social, environmental and economic value will inevitably ensure that the full contribution of organisations with a social or environmental purpose is recognised. Social enterprises are the prime example of such organisations. The current pressure on all parts of government to make spending cuts is particularly important to ensure that the full value of organisations is recognised. Consultation may clarify social and environmental aspects of the service, which will then be reflected in the specification. Effective consultation can also lead to fewer bureaucratic procurement processes—which is much to be hoped for—and a greater range of suppliers responding, which in turn will drive value for money.
On behalf of the Government, I welcome the Bill. I know that the House agrees that it is a useful and important step in the long-term process of transforming procurement in the public sector and enhancing our work to build what the coalition Government call the big society, what Liberal Democrats call the responsible society and what others call community engagement, active citizenship or local self-government. Whatever we call it, I hope that all parties share the same objective, and I hope that the Bill will help to push us further in that direction.
Lord Newby
My Lords, I thank all noble Lords who spoke in the debate. I am extremely pleased to get such support from all sides of the House. The debate demonstrated the degree of experience and expertise on the subject in your Lordships' House, and a deep, common-sense approach to difficult issues. Rather than looking at principles, we look at how things work on the ground. There is widespread acceptance that the Bill will not transform the world, but will play a part in doing so. As the noble Baroness, Lady Thornton, said, it is a step on the journey. As the noble Lord, Lord Wallace, said, it is a long-term process. As the noble Lord, Lord Mawson, among others, said, we are trying to effect a culture change, which one piece of legislation can only partially do.
It is one of the attractions of your Lordships' House that one normally leaves a debate with one or two new ideas or phrases ringing in one's mind. I will take away two from today. The first is the idea of the noble Baroness, Lady Stedman-Scott, that we are talking not about not-for-profit enterprises but about not-for-dividend ones. We want social enterprises, and they have to be profitable. If they are not, they are not enterprises and they will not be around for very long. The phrase “not for dividend” is not used often enough to segregate this sector from the rest of the entrepreneurial environment. My quotation of the day is from the noble Lord, Lord Mawson, who asked us all to become the Brunels of this generation. I had never thought of myself or my colleagues in those terms, but it is a comparison to which we should all now aspire. With that, I request that the House give the Bill a Second Reading.
Parliament Square (Management) Bill [HL]
(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Marlesford
“( ) placard, notice or structure designed or adapted (solely or mainly) for the purpose of displaying such placard or notice, whether or not any such structure is used solely for that purpose,”
Lord Marlesford
My Lords, this small amendment—the only amendment to this little Bill—is a tidying-up amendment to stop up a loophole, because it includes an extra category of stuff that will not be allowed to be left in Parliament Square. Your Lordships might wonder why we still have this Bill. The Government had their own Bill, which is now the Police Reform and Social Responsibility Act 2011. My Bill takes a rather different approach because it has less activity for the police and more activity for the waste disposal authority of Westminster City Council under the guidance of the committee that the Bill proposes to set up.
It is quite interesting to take this opportunity to note the progress made so far under the Government’s Act. Two sections are relevant: Section 143, which defines what is not allowed to happen in or to be in Parliament Square, and Section 145, which describes the powers the police have to seize. My Bill does not have powers to seize because it has a gentler and, perhaps, more efficient way of doing things.
Section 143(6) of the Police Reform and Social Responsibility Act states:
“It is immaterial for the purposes of a prohibited activity … whether the tent or structure was first erected before or after the coming into force of this section”.
As your Lordships may have noticed, the police have already made considerable progress in clearing Parliament Square, but in front of the Palace of Westminster there are still a line of placards, a line of two or three sleeping tents and a couple of little huts. Incidentally, the little huts would be covered by my amendment. The reason for this is that a certain person has obtained an injunction from the High Court. The injunction is against the Commissioner of Police of the Metropolis and the Secretary of State for the Home Office. It states that they be restrained from enforcing the provisions of Part 3 of the Police Reform and Social Responsibility Act 2011, in relation to the claimant’s campaign site currently located on the footway surrounding Parliament Square, until the termination of the claimant’s application for judicial review resolution of the claim if permission is granted or a further order of the court. Because of the normal sub judice rules, I am not going into any of the details, and the law will take its course, but I think that the very fact that there is an injunction perhaps indicates that removing something that has been there for so long is not always a straightforward matter. I hope that if my Bill goes down to the other place, it will be something of a longstop. We do not know whether it will make any further progress, but I beg to move.
Lord Desai
My Lords, I have spoken at previous stages in the debate on Parliament Square. I welcome the Bill and commend it because the noble Lord, Lord Marlesford, has provided for a committee with the ongoing responsibility, day in, day out, of looking after Parliament Square. I am especially pleased not so much with Clause 2(2), but with subsection (1), which enjoins the committee,
“to facilitate lawful, authorised demonstrations in the controlled area of Parliament Square”.
That is very important. It is as important as cleanliness et cetera. The idea that people should have access to Parliament Square for legitimate activity is also important. I agree with this amendment, which will tidy up, in more senses than one, the entire issue.
Lord Stevenson of Balmacara
My Lords, in some senses, we are surprised that we are here. As the noble Lord, Lord Marlesford, explained, we all thought that the fox had been shot—if that is not too rigorous or loud a metaphor—with the passing of the Police Reform and Social Responsibility Act, since that seemed to have caught all the points that he raised. But of course it does not. All we seem to have gained as a result of that is exchanging a few tents, with presumably very serious protestors, for a battered police van which rather destroys the beauty of the square. But no doubt, as we have heard, processes are going ahead and things will get resolved.
So why are we here? If the Government are convinced that their legislation has solved the issue, it is surprising that they have found time for the Bill to come back. However, we welcome it. It is helpful to have a further debate, because things are perhaps not quite as clear-cut as we thought. There still remain in our minds the issues raised particularly at Second Reading when the then Minister, the noble Baroness, Lady Browning, was unable to deal completely with the issues about areas adjacent to Parliament Square, which are still likely to be infiltrated and used by those who wish to protest in a lawful way. The measures that have been put through do not necessarily deal with that. There is still an issue regarding the area immediately outside the Houses of Parliament and adjacent to the Palace and Parliament Square which has not been resolved. Perhaps there is a case for maintaining interest in this Bill, which we could use to clear up some of the other issues. But that is for another day.
As the noble Lord said, this is the Persil amendment—a softer touch to that put forward in the original Bill. It will provide a gentler, more cleansing effect than perhaps the phrasing in the Police Reform and Social Responsibility Act. On that basis, the amendment is totally unexceptional and we support it.
Lord Campbell of Alloway
My Lords, I support the amendment, with gratitude to my noble friend for having entered into this difficult problem. The Joint Committee considered the issue for a long time and took a lot of evidence. Its view is recorded, as is the evidence, in a second vast volume. This is an important matter. The noble Lord mentioned human rights. It has been trespassed upon by a misunderstanding or misconception of human rights as they should be applied. There is a recent decision, which is today reported in the Times, where the court has said that in a similar context there would be no question of infringing human rights because the right of expression could be made elsewhere and otherwise. I therefore support the amendment.
Lord Elton
My Lords, the noble Lord, Lord Stevenson of Balmacara, rightly pointed out that we have a problem with areas adjacent to the square and suggested that this Bill might be a vehicle for dealing with that. He went on to say that that is a matter for another day. In agreeing with him in his speculation, perhaps I may ask the Minister to tell us how there shall be a connection made between the two pieces of legislation so that we do not put this on the statute book and close the door on this option—or, equally, that we do not keep it for ever off the statute book because we are waiting for the door to open.
Earl Attlee
My Lords, I thank my noble friend Lord Marlesford for tabling his amendment and enabling a little more debate on this topic. I have been looking forward to it all week. The management of Parliament Square is an issue to which I know he and many of your Lordships attach considerable importance, although hitherto I have only commented in private. My noble friend Lord Campbell of Alloway will understand that I shall confine myself to the merits of the amendment, and my noble friend Lord Elton raised other issues.
The Government are committed to restoring rights to non-violent protest. The Government are also committed to ensuring that everyone can enjoy our public spaces and do not consider it acceptable for people to camp on Parliament Square. I am sure that this view is shared by the majority of people in the United Kingdom. I therefore recognise my noble friend’s intentions in bringing forward this Bill and the Government share his desire to see the square cleared to enable its use by the wider public, including protesters.
On the specific amendment, I understand my noble friend’s concern in relation to the storage box structures on Parliament Square which are also used to display protest messages. I would, however, consider that these structures are already captured by Clause 2(2)(b) of the Bill as their function as storage boxes means that they should be captured in the definition of a,
“structure that is designed, or adapted, (solely or mainly) for the purpose of facilitating the sleeping or staying in a place for any period”.
However, my noble friend is a skilled and experienced parliamentarian. I fully understand why he has tabled his amendment and I cannot imagine him leaving a loophole in his original drafting. In relation to hand-held placards, the Government consider that these can be used to facilitate the right to effective peaceful protest and it would not be appropriate to ban their use on Parliament Square. However, if they are left overnight, then they would constitute litter that would be cleared away by the appropriate authority.
As my noble friend is aware, the Government brought forward provisions in the Police Reform and Social Responsibility Act to enable tents and other structures, such as those outlined in the Bill, to be removed. The Government commenced these provisions on 19 December 2011 and we consider them a proportionate means by which to manage the disruption caused by the encampment. I am convinced that the Act is properly drafted. On 16 January 2012, the Metropolitan Police Service led an operation to enforce the provisions and remove the encampment in so far as possible given the High Court injunction that is in place in relation to one of the protester’s sites pending a judicial review hearing, as observed by my noble friend. He has by implication made it clear that he does not expect me to comment on the proceedings.
The Government agree with my noble friend that it is necessary for all enforcement agencies to work closely together if Parliament Square is going to be managed in a way that promotes its enjoyment and use by all. That is why we have worked with the Greater London Authority, Westminster City Council and the Metropolitan Police Service to ensure that effective enforcement protocols for the PRSR Act provisions are in place.
Once again, I thank my noble friend for moving his amendment and I hope that he is reassured by the provisions the Government already have in place through the PRSR Act.
Lord Marlesford
My Lords, I am grateful to all noble Lords who have kindly spoken on this amendment. It sounds to me as though people are reasonably happy that the amendment should be included in the Bill.