House of Lords

Tuesday 31st January 2012 Lords Chamber

Tuesday, 31 January 2012.

14:30

Prayers—read by the Lord Bishop of Norwich.

Rail: Great Western Passenger Franchise

Tuesday 31st January 2012 Lords Chamber

Question

14:36

Asked By

[Lord Berkeley]

To ask Her Majesty’s Government whether they will ensure that the new Great Western passenger franchise provides the capacity and service quality to meet the expected growth in passenger numbers.

[Earl Attlee]

My Lords, on 22 December, the Department for Transport launched a consultation on the new Great Western franchise. The consultation document contains the Government’s objectives for the new franchise. These include: providing appropriate capacity for passenger services that is both affordable and delivers value for money for the taxpayer within defined infrastructure and rolling stock constraints on the Great Western network; and ensuring that the overall passenger experience improves throughout the life of the franchise.

[Lord Berkeley]

I am grateful to the noble Earl for that Answer. I have read the document to which he referred and good things are certainly said about the problem of overcrowding. However, he will be aware that according to government statistics eight of the 10 most crowded trains are on First Great Western, and there have been serious overcrowding problems at Bristol and in Cornwall. Given that there will be a long franchise and that the number of passengers may greatly increase, how will the Government incentivise the successful franchisee to run more coaches or trains so that it does not have to go to the Treasury begging for more money?

[Earl Attlee]

My Lords, I entirely agree with the noble Lord on his analysis of the overcrowding problems on the current franchise. He will be aware that the difficulty with the current franchise is that it does not incentivise the operator to increase capacity. However, there will be significant capacity increases, especially with the introduction of the IEP train.

[Lord Touhig]

My Lords, will the successful bidder for the franchise be required to provide new rolling stock? As a regular user of the service, I can testify to delayed and cancelled trains because of mechanical failure, sweltering or freezing carriages because air conditioning does not work, lavatories blocked or flooded, and on one train that I travelled on recently the brakes seized and part of the train had to be evacuated because of appalling fumes that filled the carriages. The one redeeming feature of the present operator is that it has excellent on-train staff, who have a difficult job working for a company that for many of us is still known as “Late Western”.

[Earl Attlee]

My Lords, the bidders are able to take into account the condition of the rolling stock when they bid, with the exception of the IEP rolling stock, which they have to adopt. We need to avoid telling the bidders which rolling stock they have to use because otherwise that would compromise their negotiations with the ROSCOs.

[Lord Snape]

My Lords, will the Minister consider something revolutionary so far as this and other franchises are concerned? The franchisee should set the fares, tackle overcrowding and run a proper financial risk for the length of the franchise; under the present system, the Government set the fares, the leasing companies own the trains and, if anything goes wrong, the so-called franchisee hands in the keys and the taxpayer picks up the Bill. Does he agree that, whatever system we have at the moment for running trains, franchising it certainly ain’t?

[Earl Attlee]

My Lords, I hope that the noble Lord contributes to the consultation, because he makes some valid points.

[Lord Bradshaw]

My Lords, will the Minister address his mind to the fact that, on many of the franchises throughout the kingdom, the carriages in use are full to overflowing, but the Department for Transport holds the trump card in the acquisition of new rolling stock, because it has to give permission before that can be done? Under the new franchise, does he envisage that whoever wins it or other franchises will have reasonable freedom to negotiate, without the dead hand of the department?

[Earl Attlee]

My Lords, the reason why it is necessary for the department to have the final say is so that it could take over the franchise and run the rolling stock. The noble Lord, Lord Snape, talked about the franchisee handing in the keys. Franchisees might want to do that if they negotiated a rolling stock agreement that had a balloon payment right at the end. Obviously, the department would refuse that. We are very keen that bidders are able to negotiate freely with the rolling stock companies, with the exception of the IEP, on this franchise.

[Lord Wigley]

My Lords, will the electrification proposals have an adverse temporary effect on capacity on the lines? In that context, will the Minister give an assurance that the Government will still consider electrification of the Great Western line through to Swansea?

[Earl Attlee]

My Lords, on the noble Lord's first point, he is absolutely right that there will be disruption on services from Paddington due to the electrification, but it is obviously worth doing. On the wider point about electrification from Cardiff to Swansea, we shall have to wait to see.

[Lord Rosser]

My Lords, an issue raised by train operators is that, as the noble Lord, Lord Bradshaw, said, if they want to increase rolling stock capacity to meet extra demand, they have to secure the approval of the Department for Transport either to use existing rolling stock more intensively or to lease additional rolling stock from the leasing companies. The approval of the Department for Transport is also required before train operators can speed up scheduled services following improvements to the infrastructure. Will the Government make provision in the new Great Western passenger franchise and in existing and other new franchises to enable the train operator to make such changes in future, subject to the other terms of the franchise remaining the same, without having to go through the, at times, time-consuming and lengthy procedure for obtaining prior approval from the Department for Transport?

[Earl Attlee]

I think that the noble Lord broadly describes some of the difficulties of franchising. We will have to see what the result of the consultation is.

[Baroness O'Cathain]

My Lords—

[Lord Walpole]

My Lords—

[Baroness O'Cathain]

My Lords, in view of the disconnect that seems to exist between the passenger experience and the views of the Department for Transport, would it not be a good idea if the 50 most senior members of the Department for Transport had it within their remit that they have to travel on the “Late Western” line at least once a month?

[Earl Attlee]

My Lords, I do not think that would be a practical requirement. However, one objective of this franchising round is to ensure that the overall passenger experience improves throughout the lifetime of the franchise.

Individual Savings Accounts: AIM Shares

Tuesday 31st January 2012 Lords Chamber

Question

14:44

Asked by

[Lord Northbrook]

To ask Her Majesty’s Government whether they will reconsider their decision not to allow shares traded on the Alternative Investment Market to be eligible for Individual Savings Accounts.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, individual savings accounts, or ISAs, are the Government’s main tax incentive for non-pensions savings, and they offer a simple, straightforward and trusted brand. The Government believe it is important that ISAs continue to hold these characteristics. AIM shares tend to present a higher level of risk, and can be less liquid. For those reasons, the Government do not intend to make them an eligible investment for the ISA wrapper.

[Lord Northbrook]

My Lords, I thank the Minister for his Answer, which once again is disappointing. I thought that the policy of the coalition Government was to encourage personal choice and, indeed, investment in our smaller and growing companies. The arguments for including AIM stocks in ISAs are very strong. They are supported by the Stock Exchange and the Quoted Companies Alliance, as they were by noble Lords on all sides of the House when the question was raised a year ago. Their eligibility would widen the shareholder base, improve liquidity and facilitate fund-raising. What is the logic of AIM stocks being included in SIPPs but not in ISAs?

[Lord Sassoon]

My Lords, this is a Question that we come back to on a regular basis and my answers are going to sound boringly repetitive. I see the noble Lord, Lord Myners, in his place. He answered this Question in the dying days of the previous Government. The simple fact is that the ISA is a trusted brand in which more than 23 million adults—45 per cent of the adult population—hold shares, and we need to protect that trusted brand and the suite of products within it. On the other hand, the Government have taken a range of measures to support small businesses. In relation to SIPPs, the liquidity requirements of an ISA with a 30-day withdrawal period, in particular, are very different from what might be the case when locking up shares for the long term in a pension savings product.

[Lord Peston]

My Lords, I think that I understand the noble Lord’s answer but surely the main criterion that ought to be applied to ISAs is: do we have a system that maximises people’s propensity to save using ISAs? If it can be demonstrated that the Alternative Investment Market will do that, even if it is more risky—and, incidentally, people ought to know that all investments are risky—surely it still makes sense for the Government to widen the range of assets, assuming that that encourages people to save.

[Lord Sassoon]

My Lords, I am very happy to confirm that ISAs have indeed been a very successful product. As I said, 45 per cent of the population over the age of 16 hold them. On the latest numbers that I have seen, the total value of ISAs is £350 billion. It was a successful initiative of the previous Government. It is the main savings product of a large part of the population and we should not do anything to undermine the value of that brand.

[Lord Lee of Trafford]

Can my noble friend name any organisation, any professional body or any serious investment commentator that supports the Government’s policy?

[Lord Sassoon]

My Lords, it depends what question they are asked and what the considerations are. I can see that lots of people have an interest in wanting AIM shares to be eligible for ISAs. However, I suspect that if they were also asked whether they wished to see AIM shares lose some of the tax benefits that they have in the way of eligibility for enterprise investment schemes and venture capital trusts and particularly the inheritance tax advantage that comes with their status as business property relief, they might not be so keen on this change.

[Lord Campbell-Savours]

My Lords, would the Minister care to remind the House of the scale of the collapse of companies on the AIM market? Perhaps I may say that I support the Government’s position.

[Lord Sassoon]

My Lords, the AIM market has been very successful, and I do not want to say anything to suggest that it is not. However, it is true that the number of shares on that market has come down from a peak of about 1,700 to the current figure of about 1,140, and of course there has been a similar decline in the value of the market. Therefore, it is a successful market but one that has a range of much smaller shares within it.

[Lord Forsyth of Drumlean]

My Lords, I should declare my interest as a director of an AIM-listed company. Is not the cost the real reason that my noble friend is not prepared to agree to this proposal? How is that consistent with the Government’s declared policy of wanting to encourage investment in small businesses and start-up companies in order to get the growth in our economy which is desperately needed?

[Lord Sassoon]

My Lords, first, I explained the reasons why the Government decided—as the previous Government rightly did—not to make AIM shares eligible. On the other hand, I am happy to summarise some of the measures to support small businesses that the Government are taking—for instance, credit easing, with up to £20 billion of lower-cost lending; £1 billion through the business finance partnership for mid-sized companies through non-bank lending channels; greater tax relief for EIS and VCT schemes; more than £500 million going into venture capital funds, including through business angel co-investment funds; and the extension of the enterprise finance guarantee. I could go on.

[Lord Eatwell]

My Lords, the noble Lord referred to the problem of devaluing the brand by including riskier assets. To what degree was the brand devalued when ISAs were extended from cash ISAs to share ISAs?

[Lord Sassoon]

My Lords, it is entirely appropriate, because ISAs are the main savings vehicle for people in this country, that a range of products, both cash and equity and debt products, should be eligible for an ISA. As I explained, there is an appropriate line to be drawn, and it is where the previous Government and this Government drew it. This Government are fully continuing on AIM with the previous Government's policy.

[Lord Barnett]

My Lords, I declare an interest as a holder of ISAs who has no desire to invest in AIM. The noble Lord, Lord Forsyth, made a major point to which the Minister did not reply. It is totally inadequate to keep saying that the Government are not going to do it. Will the Minister not at least reconsider it?

[Lord Sassoon]

My Lords, there are no plans to reconsider it. My noble friend Lord Forsyth put up another possible reason why the Government might not want to make the change. I said that the Government were not making the change for the reasons that I first gave.

Legal Aid

Tuesday 31st January 2012 Lords Chamber

Question

14:52

Asked By

[Lord Bach]

To ask Her Majesty’s Government what assessment they have made of the implications of legal aid cuts for law centres.

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

My Lords, the equality impact assessments lay out the best estimates of the likely costs and benefits of the reforms. The equality impact assessment considers the financial implications for not-for-profit providers, of which law centres are an example.

[Lord Bach]

My Lords, I thank the Minister for his reply. Everyone agrees what a vital and civilising role law centres perform around our country. Everyone agrees that early legal advice solves problems, helps people, changes lives and often saves costly and unnecessary cases going to court. The effect of taking social welfare law out of scope will be to reduce the funding for legal help by law centres by 85.8 per cent. Law centres will inevitably close and many thousands of people, often the poor and marginalised, will be left without access to justice. Even the TaxPayers’ Alliance chairman wrote:

“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.

Does the Minister agree with that analysis, and would it not be an absurd and wrong result if we should end up spending more public money in order to make our country less just and less civilised?

[Lord McNally]

My Lords, the noble Lord will not expect me to agree with that analysis, which has been his constant theme during the passage of the LASPO Bill, and I suspect will continue to be, based on a worst-case scenario. We are restructuring legal aid and that will have an impact on the not-for-profit sector. We have never resiled from that. However, we also appreciate the benefits of the not-for-profit sector, which is why we provided £107 million in transitional funds and an additional £20 million to help the sector restructure for the new framework of legal aid and legal services that the reforms are intended to bring about. I do not accept the worst-case scenario that has been the basis of the noble Lord's arguments throughout the passage of the Bill.

[Lord Mackay of Clashfern]

My Lords, does my noble friend agree that the law centres are probably the most efficient and economical way of providing advice for those who are not particularly well off but who really need advice?

[Lord McNally]

I thank my noble and learned friend for that helpful question—he is making a habit of helpful interventions. Of course we do, and nobody doubts that. That is why, as I said before, we have provided funds for this transitional period and why my honourable friend Nick Hurd is at this moment making attempts to identify funding that will give the not-for-profit sector a better long-term future. Nobody denies, underestimates or fails to appreciate the benefits of the not-for-profit sector. The key is how it will adjust to the new structure of legal services that we are bringing about by these reforms.

[Lord Howarth of Newport]

My Lords, is equality before the law not a basic liberal principle? Why has the coalition abrogated it?

[Lord McNally]

It has not.

[Lord Phillips of Sudbury]

My Lords, does the Minister accept that the Law Centres Federation expects several urban law centres to close? Where are the distressed people who have hitherto got essential advice from those law centres going to go? Secondly, if the Minister is inclined to say that they can use the telephone helpline that we propose to set up, would he not accept that many of the people in most need of basic welfare law advice, which is often hugely complicated, are inarticulate and unable to access the advice they need on a telephone helpline?

[Lord McNally]

Again, my noble friend quite often intervenes to ask a question and then provides part of the answer. Yes, part of the answer is the electronic means of advice through telephone gateways et cetera. I do not accept his definition of the capabilities of people to get advice this way. I think he is out of date in that respect—

[Noble Lords]

Oh!

[Lord McNally]

People now use local library facilities, go online and use all kinds of ways. I repeat that we are looking at the not-for-profit sector to see how it will be able to help. We do not always preach the worst-case solutions and scenarios which, again, have been the common theme from my noble friend. We are reforming the legal aid scheme, as the previous Administration said they would. It will cause differences in structure for the not-for-profit sector. We are trying to help it to adjust in that transition and are urgently looking for a long-term solution as far as its funding is concerned.

[The Lord Bishop of Norwich]

My Lords, what impact does the Minister expect the cuts to have, in particular, on disabled people who rely very heavily on law centres for advice on housing and welfare issues? Might this not be a further blow to those who are already disadvantaged in making their case to tribunals?

[Lord McNally]

We are having this debate more widely in the Bills going through the House. Some of the worst-case scenarios will not be borne out by experience. I think that the not-for-profit sector will adjust to these new circumstances. We have argued the case in the Bills for the changes we are making, which we think will not be borne out with some of the—I put it at its most gentle—worst-case scenarios that are put forward by those opposing us.

Companies: Executive Remuneration

Tuesday 31st January 2012 Lords Chamber

Question

14:59

Asked By

[Lord Lea of Crondall]

To ask Her Majesty’s Government how they will ensure that company boards take full account of the interests and views of employees and the wider public in the determination of executive board pay.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)]

My Lords, it is not for Government to micromanage how companies set board pay. Indeed, it is for shareholders to challenge where they believe pay is inappropriate. Last week, the Secretary of State for Business, Innovation and Skills announced proposals to improve the information that shareholders have at their disposal, and this includes requiring companies to report on how they have taken account of the views and pay levels of employees, and company performance, when setting executive pay.

[Lord Lea of Crondall]

I thank the Minister for that reply. Mr Cable’s statement undoubtedly contained some excellent analysis, but two questions arise. First, without implementing Ed Miliband’s proposal for worker representatives to be on remuneration committees but simply relying on corporate shareholders to stop the insane leapfrogging that goes on at present, what is there—except in the special case of RBS—that will bring about these overdue changes? Secondly, on information and consultation bodies in industry, Mr Cable’s wish for things to move faster than the present snail’s pace is welcome, but again it is not clear what the driver of faster change will be. Will the Secretary of State take an early opportunity to discuss his ideas on this with the TUC?

[Baroness Wilcox]

Actually, shareholders are getting more engaged on the issue of pay. They have publicly stated their intention to get tougher, particularly with the large public companies, and we are giving them the tools to do this, which is what the Secretary of State, Vince Cable, said last week. As to the second half of the question—which the noble Lord is perfectly entitled to ask, as he reminded me before we came in here today—my ministerial colleagues Vince Cable and Ed Davey meet regularly with representatives of the TUC and will look to discuss this with them the next time they meet.

[Lord Myners]

My Lords, I declare an interest as a partner in a fund management firm. The Leader of the House in the other place said in answer to a question from my honourable friend Ms Angela Eagle before the recess that the Government were looking into the case for shareholders being represented on the nominations committees that appoint the independent directors to boards. Vince Cable said nothing on this subject. Can the Minister explain why he was silent on that, and can she assure us that the ministry will ask Professor John Kay to ensure that this is investigated in his review on governance?

[Baroness Wilcox]

The noble Lord gave the answer in the question that he asked me. Professor Kay will be giving his interim review next month and I am absolutely sure he will be answering the question that the noble Lord has asked.

[Lord Razzall]

My Lords, I am sure that the noble Baroness is aware that the Secretary of State’s statement endorsed 10 of the 12 recommendations of the High Pay Commission; the major one that was not endorsed was that there should be employee representatives on the remuneration committee. Is she prepared to expand a little on that and accept that there are a number of reasons for it, particularly the difficulty for companies that have the majority of their employees outside the United Kingdom? Will she also accept that one of the problems is weak trade union recognition among leading companies, and can she expand on what the Government propose to do to honour the Secretary of State’s undertaking to try to obtain the views of employees on these issues?

[Baroness Wilcox]

The Secretary of State gave a very broad, sweeping statement last week, as my noble friend has already mentioned, which he will be speaking to more and more as the weeks go on. Putting employees on board committees is something that obviously everybody would like to see happen. The closed shop of boards and board committees needs to change and we are taking measures to promote diversity. However, as the Secretary of State made clear last week, bringing people on to board committees who are not also company directors, with the associate responsibilities, is not the way forward.

[Lord Nickson]

My Lords, do the Government agree with the article in today’s Times by Sir Roger Carr, president of the CBI, that if the business climate is to thrive in the United Kingdom, both politicians and the public need to understand and respect the need for it to do so, and the wealth and the employment that it creates, and that unless we do, we are quite likely to be negative in that respect? Do the Government agree with the sentiments expressed by Sir Roger Carr?

[Baroness Wilcox]

We want individuals who genuinely create jobs and wealth for the UK to be appropriately rewarded, but it is not right that people are rewarded for lacklustre performance. That is the area that we have to look at and the area that we are encouraging the shareholders, especially the big ones, to look at, too. If they can get the conditions in which deals are arranged, I am quite sure that everyone will be delighted to see one of the great men of the world who can run these companies actually run a British company and get whatever bonus he is entitled to.

[Lord Monks]

My Lords, in view of the Government’s confidence that shareholders will be able, under these new arrangements, to curb inflation in boardrooms, which has been rampant, are the Government prepared to revisit quickly the issue of representations on remuneration committees by outside interests, including employees, especially in the light of the successful experience of this in neighbouring countries across the North Sea?

[Baroness Wilcox]

I have lived in the European Union and worked in companies there that have very different methods from ours. One of the things that I found difficult was that very often when one had a range of employees on the board, the board’s decisions would be taken outside the boardroom and what happened inside the boardroom was rubber-stamping. We certainly do not want to see that in this country. However, we are looking at whatever we can. I will reinforce the point, if I may, that UK employees in large companies already have the right to request that their employers consult them through information and consultation arrangements, and we would encourage them to use those arrangements. More than that, I would encourage the union leaders to encourage employee members to use them—they are available to them—rather than necessarily taking them down the path of a more extravagant gesture.

Welfare Reform Bill

Tuesday 31st January 2012 Lords Chamber

Third Reading

15:07

Clause 10 : Responsibility for children and young persons

Amendment 1

Moved by

[Baroness Meacher]

1: Clause 10, page 4, line 36, at end insert—
“such additional amount to be paid at either a higher rate, or a lower rate, which shall be no less than two-thirds of the higher rate as may be prescribed”

[Baroness Meacher]

My Lords, Amendment 1 seeks to ensure that the gap between the higher and normal-rate additions for disabled children is not too great. The Government’s proposals for these additions, according to the Minister, are designed to be revenue neutral. The money saved is to be used to raise the level of income for adults in the support group.

[Baroness Garden of Frognal]

My Lords, I apologise to the noble Baroness, but might I just suggest that people leave the Chamber quietly, because it is very difficult to hear what she is saying?

[Baroness Meacher]

The amendment proposes that Ministers revisit the relationship between the new levels of disability addition for children and allocate resources to adults in the support group when new money allows. I know that we must move on from arguments made on Report, but I must make just a few points to help my argument here to be coherent.

Very briefly, under the new provision for a disability addition and a higher addition, families who have a child who is eligible for the higher addition will receive £1.50 per week more than current claimants do, but families with disabled children who do not meet the stiff criteria for the higher addition will receive £27 per week less. Most families with a disabled child will therefore lose about £1,400 a year.

This amendment would peg the normal addition for disabled children at two-thirds the level of the higher disability addition for children. The House voted on a more radical amendment on this issue on Report and the Division was lost by two votes. We are seeking to eliminate the cliff-edge between the two levels of disability addition for children because all such families are far less likely, for example, to be able to rely on relatives or other informal carers. Their childcare costs will be far higher than those with a non-disabled child. Of course, families will have to pay 30 per cent of their childcare costs whereas today they pay, I think, 5 per cent. There really is an issue of work incentives for those parents, although I understand that the Minister will have a go at me on that issue.

On another terribly important matter, the need for high childcare costs will continue until the child is very much older, if not indefinitely. That applies to children who would not qualify for the higher rate addition yet who may be very severely disabled. That is the point. This amendment would go a long way to creating a much fairer system, which is what we are all about.

One might ask whether it really matters. It does matter because 100,000 or so disabled children affected by this loss of benefit are very likely to live in poverty. Recent research by the Children’s Society indicates that once the additional costs of disability are accounted for, four in every 10 disabled children are living in poverty and a loss of income would really matter. Therefore, disabled children would not only live in poverty but would have vastly greater costs.

The Government argue that their new additions align the levels of support for disabled children with those for disabled adults, but the levels of support are based on completely different tests. For children the test is based on eligibility for DLA, and for adults it is based on their fitness for work. So I am not quite sure how the Government are arguing that these have been aligned.

The Government argue that the changes will ease the transition to adulthood for disabled children. On Report, the Minister said:

“We want to smooth the transition from childhood to adulthood by removing that artificial divide”.—[Official Report, 12/12/11; col. 1054.]

In fact, the restructuring will reduce the support for most disabled children. It will not reduce the support for the very most disabled children who require night-time care, but it will reduce it for others. Therefore, I do not accept the argument.

There are good reasons for proposing a disability addition at two-thirds of the higher rate for children. This addition is needed to contribute to the costs of special clothing, repairing damage, safety measures and special food, and to contribute to the costs of giving disabled children access to the opportunities that other children have. We know that simple things like swimming lessons cost something like £270 for 12 lessons for a disabled child as opposed to £80 for a normal child. Where will that money come from? A summer club costs £450 per week for a disabled child compared with £100 a week for a non-disabled child. Yet these are the things that would give a parent a break and really help a child to socialise and benefit from development opportunities.

The Government’s proposed child additions go nowhere near covering these extra costs. I fear that their proposed reforms to disability additions are short-term fixes. I understand the position of the Minister, who is under huge pressure from the Treasury. One of the troubles for this House and noble Lords is that this reform, much of which we support in principle, is being tangled up with swingeing cuts to benefits which are having unacceptable impacts. Therefore, we are trying at the edge to ameliorate some of those unacceptable impacts. That is what we are about. The Government’s proposed reforms to disability additions therefore need another look by Ministers.

I turn to the particular problems of single parents with a disabled child. Many years ago I ran a group for parents of severely disabled children. I expected lots of mums and dads to turn up, and I was faced with what I thought was an absolute tragedy: the room was full of mothers who told me that the fathers had gone. Many of them had left home within months of the birth of the disabled child. It is these mothers and a great deal of others whom we need to have in our minds today.

Many parents of disabled children will be doing something very valuable for society by staying at home to develop their children’s full potential. They should not be under pressure, even in these stringent times, to go out and stack shelves. By devoting themselves full-time to therapy, play exercises and other learning activities, they are reducing the dependency levels of their children that, with luck, will last throughout their lives—some cannot make progress, of course, but many can—and increasing the possibility that their children can develop a degree of independence, and maybe even financial independence, in adulthood. It would be wise for the Government to take this issue very seriously.

I would ask the Minister to revisit the two levels of disability additions to consider whether the balance is right. Is there not merit in leaving the higher rate at £76 and retaining the basic level at two-thirds of that sum, which is something like £50? That really would make an enormous difference to these families. I would be grateful if the Minister would agree to take this matter away for further consideration, even at this very late stage, in the light of what I think are very powerful arguments for some change in their approach. Finally, will he agree to review the impact of the disability benefits changes in the universal credit system one year after its introduction—although I know that the system is to be introduced over time, so a year may not be terribly realistic? While doing that, will the Minister consider taking a look at reviewing the entire welfare reform package? I beg to move.

15:15

[Baroness Wilkins]

My Lords, I have added my name to this amendment, which has been ably introduced by the noble Baroness, Lady Meacher. The children we are talking about, those who will be affected by this reduction in benefit, are those who are profoundly deaf, who have Down’s syndrome and those with cerebral palsy, among many other conditions. The Government are focusing their resources on the most severely disabled, but the costs of bringing up a disabled child do not equate with the severity of the impairment. The care costs can be just as expensive, sometimes even more so, for bringing up a child who will qualify only for the future lower rate of addition under the Bill.

I grew up with my friend’s younger sister who was born with cerebral palsy. It was a family with four children. The whole family’s life was dominated by trips to London to visit her therapists, visits to hospital, visits to the swimming pool and so on, so that she could avoid contractures and had a chance to develop her full potential. Of course, we all had to go because there was no one to look after us at home. The cost must have been considerable. Then there were the costs of extra equipment, the constant wear on her clothes and so on. If Paula had qualified for the higher rate of care and needed night time attendance as well, it would have put a considerable strain on her family, but it would only marginally have increased the costs. Under this Bill, Paula’s benefits would have been halved, and her chances of developing to her full potential and living an independent life would have had no hope at all.

What about profoundly deaf children? Most do not need day and night care and so would not qualify for the higher rate. The National Deaf Children’s Society tells me that it was contacted by Laura, a single mother whose daughter was diagnosed as deaf soon after she was born. Laura had to give up her job as a nurse as she was the only person who was able to care for her child. She said to me that her life then spiralled out of control and she started getting into financial trouble. All she could think about was, “I have got to eat less and I have got to turn the heating down”, otherwise she simply would not be able to support her daughter. The NDCS helped her to apply for the current benefits, and now that the stress of not being in financial trouble has gone, she is finally able to concentrate on learning to communicate with her child, thus giving her the best possible start in life. But under this Bill Laura would lose up to £1,400 a year. That is £22,000 over her daughter’s childhood. The sum of £1,400 is the cost of heating your house for a year. Think of the danger and the misery that that will mean on a freezing cold day like today.

On Report, the Minister argued that he was working within a fixed financial envelope and that he just could not maintain the existing rates for disabled children if he was going to increase the rates for severely disabled adults. If ever there was an example of robbing poor Peter to pay poor Paul, this would be it. Surely the Chancellor is able to release his noble friend the Minister from this part of his restrictive envelope and find the money from the shoulders of people who would not notice the loss of £1,400 a year. We know that there are many of them; we read of them daily in our newspaper headlines.

Does the Prime Minister really wish to leave this as his legacy for disabled children—children with cerebral palsy? I urge your Lordships to support the amendment and send a message to the Commons to think again.

[Baroness Thomas of Winchester]

I gather that we are being asked not to rehearse all the arguments. We have, anyway, heard very full arguments from the noble Baronesses, Lady Meacher and Lady Wilkins. I shall try instead to concentrate on the amendment.

No one likes cliff edges of any sort in the benefits system, and this amendment tries to make one edge less steep over time. The cliff edge that the Government are trying to eliminate in universal credit is the amount of disability additions received, by way of different gateways, by new claimant families for a moderately disabled child under 16 and a moderately disabled adult of 16 and over. The amendment’s cliff edge is different. It tries to address the difficult and sometimes rather artificial differences between the needs of a severely disabled child—whose family will get more money under the Bill—and those of a moderately disabled child and a much less disabled child, both of whose families will get much less money. I have great sympathy with the amendment because I believe that as many families as possible with even moderately disabled children should be helped, although I acknowledge that the amendment, narrowly drawn as it is, to some extent preserves the cliff edge between the disability needs of children and adults in universal credit which the Government are trying to eliminate.

The question is whether the formula in the amendment should be locked into the Bill, or whether everything should be left to regulations. My noble friend Lord German will address that shortly.

[Baroness Browning]

My Lords, I should like to talk directly to my noble friend the Minister about money, because we all understand the imperative to reduce the deficit and how, right the way through the Bill, trying to cut back has been part of the debate on almost every clause. However, this amendment seeks to attain proportionality between that higher and lower amount of addition made to universal credit for disabled children.

I come back to a question that we have raised in previous debates: what exactly do we mean by “disability light”, because that is really what we are talking about. These are still disabled children, in the same way as, in other parts of the Bill, they are still disabled adults. It might be presumed that it is somehow like comparing a light head cold with a really nasty bout of flu, but I say to my noble friend—I should have referred to my interests in the register—that it is not like that. For children with disabilities who will lose this huge sum of money and for their carers, particularly the parents, the impact will be great. We have already heard in your Lordships' House today about the impact on some—not all—families of caring for a disabled child, as well as on the relationship between the parents and—and this should never be forgotten—on other siblings. Usually there are other people in the family. They all share in the responsibility when they share a household with a disabled child.

I have spent many years dealing with casework for what must run into hundreds, if not thousands, of adults and children on the autistic spectrum. If this is about money, I hope my noble friend will take my word for it that although they might be considered as “disabled light” in childhood, a huge proportion of them will be the big bills to the public purse later on in adolescence and adulthood. Not only is the human cost of that tragic and avoidable—because most of it is avoidable, if it is properly planned and cared for—but there is the economic aspect. Just putting in the basics early enough, some of which are very low-budget items, can prevent the very big crisis-budget bills that inevitably come. I say “inevitably” quite deliberately, because that is what we know happens; it is well recorded. We have enough evidence of this right across the whole disability spectrum, particularly in some of those spectrums that I take a particular interest in, which are not immediately visible. They are the ones where there is no obvious physical disability but which none the less have a profound impact on the individual concerned. I do not want to overegg this, but Members of the House will have seen the headlines. We see these tragic cases where parents have a disabled child who is sometimes of school age but sometimes an adult dependent child; for those parents, childhood does not end at 18 or when they leave education, it goes on year after year. I can think of some pensioner parents with pensioner-age children still living at home and wondering what is going to happen to them. This is a lifetime commitment for parents.

I am quite sure that if my noble friend, and certainly the Treasury, have done the cost-benefit analysis that I asked for when we discussed DLA in the context of this Bill, they will find that this amendment, although not what the Government are proposing, will save the public purse over the medium to longer term. If we look at it in those crude terms—because that is what I feel they are—we will save a lot of pain and anguish. We will certainly save lives. At the end of the day, it will also save the Exchequer money in some part of the public sector where it will almost certainly have to be found in a hurry.

[Baroness Hollins]

My Lords, I stand very briefly to support this amendment. As a psychiatrist who has worked for many years with families with disabled children such as those we have been hearing about, I feel very strongly about the point that the noble Baroness, Lady Browning, made about proportionality. It is very difficult to base the cost of having a disabled child on whether the child needs care at night or only during the day. This relates particularly to children who have very difficult and challenging behaviour, including those with learning disabilities who might have attention deficit syndromes or autistic spectrum disorders. This amendment needs very careful and thoughtful consideration.

15:30

[The Countess of Mar]

My Lords, I am pleased to support this amendment so ably moved by my noble friend Lady Meacher and so clearly defined by the noble Baronesses, Lady Wilkins and Lady Browning. The principles behind universal credit are an acknowledged improvement on the current arrangements for benefits for people who are either in or out of work. Noble Lords cannot but be aware of the enormous strains that disability can put on individuals and their families. That has been pointed out to us today. These strains fall disproportionately on parents of children with disabilities. Most of the time the public are unaware of the emotional demands made by a child with whom his parents cannot reason and whose needs are unending, unpredictable and create additional burdens on the family finances. I have a huge respect for mothers who continue to cope while at the end of their tethers.

The improvements in neonatal survival rates have brought with them more children who are very dependent. Some will never be wholly independent. Some children become disabled through illness or accident for which no one is to blame. There will be no huge compensation payouts for them. This is a responsibility that can be too much for parents to bear alone and I believe that we should all ensure that they receive adequate support.

Recent research by Dr Esther Crawley at Bristol University showed that as many as one in 100 children away from school may have CFS/ME. Many of these children are currently in receipt of DLA at the lower rate, which has a mobility component, as well as others at the higher rate, although they can walk short distances. We do not know how such children will be assessed in future, although if the PIP assessment is anything to go by they will lose the mobility component. Their DLA helps with childcare costs and transport, among other things. It also provides a passport to other benefits, such as Blue Badge, congestion charge exemption and the London Taxicard. As one mother put it to me recently:

“Without these my daughter would essentially be housebound and not only would have no social life whatsoever, but she couldn’t get to medical or dental appointments or places of educational interest associated with her studies. She is a clever talented girl who cannot progress to higher education without these things”.

I am growing increasingly concerned about the strains that we are about to put on our less fortunate citizens by the provisions of this Bill. There are reports appearing on a regular basis of deaths of people found by ATOS to be fit for work. Chris Grayling acknowledged that 31 people had died while awaiting their appeals in the three years to last October. I understand that benefit cuts are also confirmed by coroners as the cause of at least 16 suicides. The noble Baroness, Lady Browning, has mentioned mothers who have murdered their children and then committed suicide.

Too often children with disabilities are cared for by a lone parent, as we heard from my noble friend Lady Meacher. Rejection of this amendment could be the last straw. Acceptance of this amendment may well be their lifeline.

[Lord Wigley]

My Lords, I support this amendment. I am not going to repeat what I said at Second Reading, in Committee and at Report stage, save to emphasise once again that as a family who lost two severely handicapped boys we know the impact of cost when there is disability in the family. Although at their latter stages they would undoubtedly have had the highest available support, at earlier stages they would probably not under the definitions now current. There are thousands of children and families who will most certainly miss out.

We are told that Disability Rights UK is very concerned about the impact that this will have on families with disabled children and particularly, as in our case, on those with more than one disabled child. It is concerned about the effect that it will have on the longer-term life chances if they grow up in poverty. The Minister said at Report stage that,

“the impact of the reform of disability payments on the number of disabled children living in relative poverty will be negligible”.—[Official Report, 12/12/11; col. 1055.]

Negligible—that is not the assessment of others. The Children’s Society estimates that over 40 per cent of disabled children already live in poverty. The Minister conceded at Report stage that we are talking about taking £200 million and redirecting it. What will be the effect of taking £200 million off those who already are very near to poverty? That is surely not acceptable.

The Minister emphasised at Report stage the provisions of the transitional arrangements being made, but he conceded that as inflation bites—and it is still running at 5 per cent—the value of this will erode, which will be a real loss to these most vulnerable people. If this issue is to be considered further, as the mover of the amendment requested, and the Government give it further thought, we must keep the issue alive by adopting the amendment today. Otherwise we will lose the opportunity. I beg the Government either to accept this or to come back with their own amendments in another place and bring them here—or, alternatively, I suggest that we as a House ensure that they are carried.

[Lord Walton of Detchant]

My Lords, I, too, wish to speak relatively briefly to this important amendment. In the course of my neurological training and in my career, I spent some time assessing children with cerebral palsy who attended the excellent Percy Hedley centre in Newcastle upon Tyne and received outstanding treatment. However, when I saw the varying degrees of disability produced by this group of conditions—a group of immense variability—and saw the effect that the condition of these children had on their families, sometimes leading to family breakdown, as the noble Baroness, Lady Browning, said, I became increasingly concerned about the evidence of the disability and the resultant poverty which developed in many of these families.

Some of my personal research was dealing with a progressive disease—Duchenne muscular dystrophy—where young boys born apparently normal would begin at about the age of three to have difficulty in walking. They then began to have problems with falling frequently and getting up from the floor, and progressively became increasingly disabled so that many of them were taken to a wheelchair by the time that they were aged 10. I saw the effect that this had when not just one but two boys might be affected in an individual family, and the problems faced by those parents were immense. I shall never forget one mother saying to me, “I see my son die a little every day”.

I am not talking just about static conditions such as cerebral palsy—although even in cerebral palsy as the child becomes older, the disability may remain neurologically non-progressive—but about the problems that begin to emerge over schooling and a whole series of other issues, which become increasingly important and increasingly matters for concern. I could go on about my personal experience in the field of neurology and paediatric neurology but I would simply say that this is a very worthwhile amendment, and one which deserves your Lordships' support.

[Lord Newton of Braintree]

My Lords, I wonder whether I might intervene briefly. I am in a slightly awkward position, and it may not surprise the House to know that I have been approached by all parties to this argument, either to say something on their side or to shut up. I am going to make a slightly ambivalent speech which will leave a lot depending on the Minister. I fully support the concerns that have been expressed by the noble Baroness, Lady Meacher, by my noble friends Lady Thomas of Winchester and Lady Browning, and by others. The Government need to listen to this and take heed, and come forward with proposals which address these concerns.

In the light of what I said last week, it will not surprise the House to know that I do not think that setting benefit rates or benefit relationships in concrete in primary legislation is sensible. I would prefer that we leave it for Ministers to decide in regulations, as the Bill provides, provided it is clear that they are going to put something sensible in those regulations and that we shall have a proper opportunity to scrutinise them. It will follow from that that I want a positive response from the Minister before deciding what I am going to do.

I will make one further point, which picks up on what the noble Lord, Lord Walton, was saying. The other thing that strikes me about setting things in concrete is that this is a world in which things change very fast, because of medical advances. He referred to Duchenne muscular dystrophy. I think I have more knowledge of cystic fibrosis, where the world has moved on hugely in the past 20 or 30 years—not least because of work done at the hospital of which I used to be chairman, the Royal Brompton—and that is happening all over the scene. Conditions that were immediately life-threatening or life-limiting at a very early age are now more treatable, and life is longer. Anything that ties us down to an inflexible framework for dealing with these problems is probably not the right way forward.

That, though, is simply a view that I express to the House. My fundamental point is that this is better dealt with in regulations, provided we can ensure that the Government will do that. I look forward to hearing what my noble friend has to say.

[Lord Peston]

My Lords, I congratulate my old friend the noble Baroness, Lady Meacher, on her excellent introduction to the amendment.

I have two points to make. First, regarding the excellent speech by the noble Baroness, Lady Browning, I used to be an expert on cost-benefit analysis; indeed, I did the very first piece of cost-benefit analysis ever done in the Treasury, and I am talking about a very long time ago. I have not the slightest doubt that if the Government were to conduct such an analysis—I am too old now to do it for them—of what they are doing in this area, it would show that there will be no net economic saving nor net financial saving from what they are doing now. Nor do I have the slightest doubt that there are plenty of very good economists in the Treasury who already know that.

My main point is that the question before us is an ethical one and should not be treated primarily in economic and financial terms. Your Lordships’ House is the best suited place that I know of to discuss such matters; indeed, I believe that we have a duty to consider the ethical aspects of what the Government are doing with regard to disabled young people. My main intellectual hobby is philosophy, and I know no philosopher who has ever written on the subject of ethics who would be other than appalled at the notion that we are discussing which group of disabled should bear the burden. Those philosophers would regard that as a rather sick formulation of policy-making and would be equally appalled that such burdens should fall on two of the most vulnerable groups in our society. The first group is the young disabled, about whom their view would be that if the Government cannot find the money, we taxpayers should meet the cost. That would be the correct ethical response to all this. The second group we ought also to bear in mind, as various contributors have mentioned, is carers and the burden placed them. I thank goodness that I have never had to be a carer in that sense. As has been pointed out, those carers worry about whether they dare die as their disabled people have got older.

The Government simply should not be going down this path. I say in terms to the Minister that he should be ashamed of himself in trying to defend such unethical behaviour.

15:45

[Baroness Howe of Idlicote]

My Lords, a Division on a similar amendment was lost by two votes. We must all remember that we have here a compromise that would mean that at least some of the huge number of children would not be as severely deprived of the many things that they need in their lives as otherwise. It is also a question, as we have heard graphically spelt out, of many single parents, mainly young mothers, coping on their own with all these additional burdens and the need to stretch the money in ways that your Lordships have read about day after day in the pleadings that come through to us all. I ask the Minister to give serious consideration to whether a compromise of some sort would do. Personally, I would prefer the amendment as it is to be passed in full; it is about the maximum that any reasonable, fair-minded person would be happy to receive.

The amendment tabled earlier by the noble and learned Lord, Lord Mackay of Clashfern, was passed. If the Minister cannot give us sufficient reassurance and this amendment is voted on and passed, the other place will have an opportunity to see just how widespread is the support for it across all Benches, as we saw with the noble and learned Lord’s amendment. Therefore, I hope that the Minister will think very hard about accepting this amendment, which was so brilliantly moved by my noble friend Lady Meacher.

[Baroness Finlay of Llandaff]

My Lords, it has been said that the mark of a civilised society is the way that it cares for its most vulnerable. I remind the Minister that the speech of the noble Baroness, Lady Browning, encapsulated the societal burden of a failure to demonstrate that we are a civilised society.

I wish to put some figures on the table which have not been mentioned in the debate to date. The Family Fund is a charity that provides grants to low-income families caring for severely disabled children. In 2010, it had to pay out to a range of families, 64 per cent of whom had a child who was not receiving the higher rate of DLA. Recent figures from the Social Fund found that 69 per cent of families with disabled children are worried about their financial situation, with 61 per cent of those struggling to pay monthly bills and three-quarters believing that the high costs of caring for a disabled child are the cause of their financial situation. Other children in the family will suffer as a result of that, probably disproportionately greatly, because the psychology of a parent caring for a disabled child often dictates that that child becomes a focus of disproportionate attention.

Research by CLIC Sargent found that on average parents spend about £367 on extra expenses a month following a child’s cancer diagnosis and treatment, resulting in an annual spend of about £4,400 for parents of a child with cancer. When these families, whether suddenly or gradually devastated by illness, do not have the money they need with which to pay not for luxuries but very basic things to enable them to provide care for the disabled child, the other children in the family, the health service and society as a whole end up paying a higher price in many domains.

The amendment was eloquently introduced by my noble friend Lady Meacher. I urge the Minister to accept it, thereby removing the need to test the opinion of the House.

[Baroness Howarth of Breckland]

My Lords, I support this amendment, but in so doing I understand the position in which the noble Lord finds himself with a set of sealed envelopes. Like many other noble Lords, I encourage him to go back to the Treasury, or at least to have a look at how the available funding can be properly distributed. After all, this is a compromise. Personally, I would like us not to be in this position at all but rather to ensure that we do not make any cuts, because these are cuts—unlike some of the other reforms—to the budgets of families with disabled children.

I do not want to repeat the eloquent speeches that have already been made but to make three brief and, I hope, slightly different points. First, the Government need to take the long view as regards financial management. If we take the short-term view, we will find that many of these families will fall into even more disarray than they are in already. We should remember that, as has been said—I reinforce this point—the majority of these families are single-parent families looked after by mothers. These are not women who have had a child for some feckless reason, as is often portrayed in the newspapers, but women whose husbands cannot tolerate the pressure of having a disabled child in the household and have simply gone out of the picture—so these women are alone. Often that means that they cannot support their child’s situation, which results in many children going into care. I shall not quote more statistics, but noble Lords know that there are large numbers of disabled children in care at the moment and placing them in foster homes is very difficult; in fact, to get them adopted is almost impossible. The state’s burden of caring for such children is huge; the costs per week of caring for a disabled child can run into thousands. In taking the long view, we have to remember the number of children in care.

My last point is that, as several people have said, if we are a civilised society, we want children to grow up to be active young people and to have a proper transition into adulthood. I declare an interest as the president of Livability, a charity which looks after young people in schools, in colleges and through into adult care. I understand the need for that transition. If we are to do that and if we are to ensure that such families have a proper life, appropriate funding is crucial. Noble Lords may have disabled children but, if you are trying to bring them up on the kind of money that these families have and in the housing conditions and relationship situations of these families, funding is absolutely crucial to underpin the care, love and continuity that these children desperately need. I ask the Minister to look in his envelopes again to see whether there is not some way in which the money can be redistributed to ensure that that does not happen.

[Lord German]

My Lords, I would like to take a little further the arguments, put by the noble Lord, Lord Newton, about where we go with the concerns that have been widely expressed around the House. It is worth reminding noble Lords that the intention expressed by the Minister is not in the Bill before us; that is the subject of future regulations that are to be brought forward. I understand that the purpose behind the amendment is to lock the Minister into a pattern which will remain for many years to come. If you put something into primary legislation, it will be locked there for many years until time is found to change it. I shall return to some of those issues later.

One thing that has not been mentioned is the other cliff edge—my noble friend Lady Thomas mentioned this in her speech—relating to those who are 16 and those who are 17. The cliff edge is enormous. We also have to consider the change in the funding, although it is not the subject of this amendment, but it is the subject of the Minister’s thinking, as expressed to us. Many people see the problem of no continuity for disabled people between the ages of 15, 16 and 17. That is the issue that the Minister is concerned about.

Another related issue is not just the level of payments, but the way in which the payments will be funded over time. Perhaps this House would be better thinking about having a further debate on this or having that discussion during proceedings on regulations. I shall come back to how that might happen in a moment. There are two possible routes out of the problem of the distinct difference in the funding for those who are post-16 and those who are less than 16. I guess that one of the ways might be to create new tiers. There are already three tiers in DLA and there are two tiers for adults. At some stage in the future, a Government—this one or a future Government—might decide that it is essential to have three tiers and they might want to redesignate. Of course, that would be stopped by this amendment.

The second and more purposeful way in which the amendment would not allow change would be as regards transitioning; I do not mean the transitional measures in the Bill, but moving to rectify the enormous cliff edge that occurs at the age of 16. For that to happen, it may well be that a Government of whatever kind would want some form of progress on changing the relationship between post-16 and under-16 provision.

All those things would not be assisted by an amendment that locked into aspic a set of placements between one set of benefits and other, and missed out the other half of this equation, which is not the subject of the amendment. Of course there are concerns about the levels of payment that go into these particular directions. If you forage around the background of these particular payments—they go back to supplementary benefits, and I guess that some noble Lords here will remember how those originated—their purpose was to pay for the additional costs that were not being funded from the disability living allowance system that we now have. Those payments related mainly to items such as energy costs—the costs of extra baths, the need for more heating in the house, extra hot water and so on. Those are very much some of the issues that face the over-16s as well as the under-16s.

We need to have this debate, but need to have it in terms of the absolute flexibility that we can create in the environment between now and when the Minister brings forward his regulations. I am sure that he has listened to what has been said today, and my advice to my noble friend would be to heed the warnings that have been given. Clearly, there are very strong views about how you treat disabled children but, at the same time, I ask noble Lords to consider in the same breath the plight of those over 16 and to think about how best we might approach this issue.

A compromise situation might well be achieved by my noble friend listening to this debate and saying that he will discuss these matters when we come forward with the regulations. I know that many noble Lords will think that you cannot do anything about regulations: they are laid before you and you can either vote for them or not. We are laying markers now and there are markers that people can lay. I am sure that all the lobby groups are lined up, ready to influence the Minister in this matter. There is time—is there not?—for us to make sure that we do not put right one problem and cause another to be set in stone against it. We need that flexibility and I hope my noble friend is listening to that, will heed what he is hearing, but give a commitment that he will consider these matters when he brings forward his regulations.

[Baroness Hollis of Heigham]

My Lords, I should like to come back on some of the points made by the noble Lords, Lord Newton and Lord German. First, I say to the noble Lord, Lord German, that this is a very narrow amendment. It is being considered at Third Reading and we were advised to focus very narrowly on the subject that we are discussing, and not to say that because we cannot do enough for older disabled young people we should therefore make younger disabled children poorer. That is what the noble Lord, Lord German, was arguing for in part of his speech, and I was sad about that. I thought it was inappropriate as well as, frankly, irrelevant—given the steer we were given from the Table about the amendment.

Secondly, the noble Lords, Lord German and Lord Newton, asked the Minister to take the opinion of the House and to come back in regulations, as though—in the words of the noble Lord, Lord Newton—we would otherwise be setting payments in concrete or, as the noble Lord, Lord German, said, in aspic. I think I prefer aspic to concrete but, none the less, the point is that we are not doing that at all. That would be fundamentally to misunderstand what the amendment seeks to do. It would be wrong to put in the Bill a precise sum of money that would require primary legislation to change. That would be wrong because it would fix a payment in concrete or aspic. We are not doing that. This amendment establishes a principle of proportionality, because—as the noble Baroness, Lady Browning, said so movingly and as so many other noble Lords, including the noble Lord, Lord Wigley, who have personal experience of this, said—the costs of disability are not just connected to the degree of disability; they are on a spectrum and may change.

Unless the amendment is passed, the Government propose that more severely disabled children will have one sum and less severely disabled children will have one-third of that sum. The amendment proposes that the right proportionality would be two-thirds of that sum. That is the principle, because we accept the arguments that have been put today by people with first-hand caring responsibilities, such as the noble Baroness, Lady Hollins, in a very moving speech, and during the whole passage of the Bill. The principle here is that disabled children fall on a spectrum of disabled needs, costs and of either an improving or a deteriorating condition. Therefore, we should not have an arbitrary line as to whether you get the full sum or one-third of it. It is not about fixing a sum of money in concrete, it is about a principle that one should be proportionate to the other. That is all we are asking the House to discuss today.

16:00

[Lord Newton of Braintree]

I did not suggest that this was setting rates in concrete; I suggested that it was setting relationships between rates in concrete. That runs into the point that the noble Baroness just made and my earlier point: that there is a spectrum which changes over time.

[Baroness Hollis of Heigham]

The noble Lord is precisely right and has therefore made my point for me. Precisely because that relationship may change over time, we do not want the cliff edge of being on either one-third or three-thirds of the rate. Precisely because, as he says, it changes over time, we want to reduce that cliff edge and not make such a sharp distinction in the spectrum of disability.

The final point that both the noble Lords, Lord German and Lord Newton, argued was that this should be in regulations because they believe in the benevolence of the Minister on the issue, as we all do. I am confident that the enemy of or opposition to the amendment is not the Minister. We know him, as we have been engaged in discussion in Committee and at Report. His principles, integrity, evidence and assiduity are without comparison. His enemy is the Treasury. I put to the House a simple question. Which does the House believe will most strengthen the Minister's arm in seeking to follow the wishes of the whole House as expressed today: leaving it to regulations which we cannot amend some way down the line—three months, six months, nine months or a year—when the Treasury can say “Go away”, as it said to me on many occasions; or passing an amendment today which would insist that the House of Commons and the Treasury think again? If they turn it over, I will be sorry about what I will regard as having happened to their moral compass, but that is their right and privilege.

I know that the noble Lord, Lord Freud, will have to read his script. I do not expect him to either confirm or deny this, but he will have to read out things that he would wish he could say differently. Whatever he may say, if we want to aid him today in his battle with the Treasury on behalf of the most vulnerable people in our entire society, we will support the amendment to establish the principle of proportionality in the Bill.

[Lord McKenzie of Luton]

My Lords, we support the amendment moved so comprehensively and eloquently by the noble Baroness, Lady Meacher. This has been a powerful debate with a strong ethical strand, as my noble friend Lord Peston said that it should be. My job is made easier by the contribution we have just heard from my noble friend Lady Hollis, who dealt comprehensively with those who argue that we should deal with this in regulations. The fact is that we have tried at earlier stages to reach the position that the amendment now provides and have been unsuccessful—as my noble friend said, possibly not because that is where the Minister wants to be but because that is the policy imposed on him. I think that my noble friend is absolutely right: if we pass this amendment today, we will put down a clear marker on proportionality, which will strengthen those who have to go and argue with the Treasury about resources.

As we have heard, the amendment seeks to prevent the interests of one group of disabled people being played off against those of another by limiting the ratio between the higher and lower levels of disability support. At present, as we have heard, the Government’s proposals would lead to a significant cut in the amount of support for disabled children on the lower rate of support, amounting to some £27 a week, or over £1,300 a year, with around 100,000 families seeing this drop in their support. We have heard some graphic descriptions from my noble friend Lady Wilkins about what support meant for her family. We also heard from the noble Lord, Lord Wigley, and the noble Baroness, Lady Browning, who made the very telling point that this is about the whole family—siblings as well—for whom the level of support can make a real difference.

The Government have suggested that this money would be recycled into higher levels of support for disabled adults on the higher rate, but we do not believe that this is a trade-off that anyone wants to see. The interests of adults with severe disabilities should not be played off against those of children with lower-level disabilities, which, as we have heard, may well include conditions such as Down’s syndrome and profound deafness. Such children have no opportunities themselves to increase their income, and we know the problems that parents caring for these children can face when trying to find paid work or increase their hours.

The amendment does not seek to prescribe the levels of support, which will of course be a matter for the Government of the day and will depend on what resources allow, but it does seek to embed the principle that, although there is a need to recognise that some conditions require a higher level of support than others, this should not be used as a reason to downgrade the needs of the many disabled children—and their families—who currently rely on the lower level. Perhaps the Minister could outline in his response, first, what he believes the ratio between the two rates should be and, secondly, how he intends to ensure that those on the lower level do not see a dramatic fall in the support that they receive.

We will doubtless hear again that transitional relief will protect some claimants. However, we know that this is not a protection in real terms and in any event it does not help new claimants. Perhaps we can hear from the Minister what changes in household circumstances he considers would break even this partial protection. In making these judgments, what weight do the Government give to the fact that disabled children are more likely to live in poverty than other children? The Minister may justify the current ratio as aligning support for adults and children. However, is it not the case—a point made by the noble Baroness, Lady Meacher—that the routes into the benefit are quite different: for disabled children through the DLA and for adults through the WCA? Is there not a disability disregard for disabled adults who can access work?

Much of our debate on the Bill has focused on its impact on children. We would all, I hope, recognise the necessity of combating poverty among children because it carries with it the prospect of greater poverty in later life. However, it would seem that on this matter the Government are shifting resources in the other direction from children to adults.

It is perhaps appropriate that today we heard from the UK’s four Children’s Commissioners, who have put out a notice. I should like to finish by quoting them:

“Families who receive welfare benefits are particularly vulnerable because they live in poverty—small changes in their household income can have a big effect on their welfare. We are concerned that many more families and their children will be pushed into absolute poverty over the coming years if these proposed changes go ahead”.

We support the amendment.

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

My Lords, I think that I have to take up the challenge of the noble Baroness, Lady Hollis, and try not to read anything at all in order to convince her that I actually believe in what I am going to say.

I preface my remarks by reminding noble Lords that the amendment is in the same territory as the one we discussed on Report that was moved by the noble Baroness, Lady Grey-Thompson, and on which there was a Division. I confess to feeling slight surprise when I saw it come back in such a similar guise. If my arguments sound somewhat familiar to noble Lords, it will be because they have heard many of them before. I need to go through them in the context of this skilfully drawn-up amendment.

I start by making it absolutely clear to all noble Lords—in particular, to my noble friend Lady Browning—that this is not about deficit reduction. Every penny of the money will be recycled to increase support for severely disabled children and adults. None of the money that we are talking about will go to Her Majesty's Treasury, with which I have absolutely cordial relations at all times. The principle that was picked up by my noble friends Lord German, Lord Newton and Lady Thomas concerns the cliff edge that exists at 16 when youngsters transition from childhood to adulthood. As my noble friend Lady Browning pointed out, many of these youngsters are in practice dependent on their families for a long time. The cliff edge is something that we wanted to smooth out. This will be essential to protect work incentives in adulthood.

I said many times in the debate that we are overhauling the whole support system for people who rely on benefits. It simply does not make sense to concentrate on any one element. The universal credit will provide a package of support for families to meet a range of their needs. That is why we need to look at the overall impact of universal credit on families rather than look at individual components. If some families get a bit less on one component, it does not mean that they will get less overall. I will pick up on the point raised by the noble Baronesses, Lady Meacher and Lady Wilkins, about some of the social activities that are required to have a good quality of life. The intention is for DLA to pay for those facilities. The purpose of universal credit is income replacement. The two benefits do different things.

I also remind noble Lords that, contrary to some estimates that have gone around this afternoon on the impact of universal credit, clearly the impact will be that families will be much better off. I remind noble Lords that I and my friends in the Treasury are managing on a steady-state basis to put £4 billion a year into the pockets of the poorest people through universal credit. That is the context in which we are making these changes. Noble Lords should not underestimate what it took to get that out through a government process: a steady-state £4 billion a year in universal credit for the poorest.

[Baroness Meacher]

My Lords, I think that I am right in saying that about £18 billion has been taken out in cuts. We are not getting extra benefit payments, but I applaud the Minister for having retrieved £4 billion; that is wonderful, and great news.

16:15

[Lord Freud]

I am very grateful for the applause. I am not hearing a lot of it. The modelling that we have done in the department shows that, as a result of this measure on the reform of disability payments, the number of disabled children living in relative poverty will be negligible. The support for families in the universal credit package includes generous disregards for parents, plus the disability addition to the child element. Of course, we are also supporting formal childcare costs right the way down the hours spectrum in universal credit.

[Lord McKenzie of Luton]

I do not know whether the Minister is going to say anything further about poverty figures, but how does he deal with the report from the Family and Parenting Institute, prepared by the IFS, showing that relative child poverty will increase between 2010-11 and 2015-16 by around 400,000, and that absolute child poverty, as defined in the Child Poverty Act, will increase between those years by around 500,000? Does he dispute those figures?

[Lord Freud]

My Lords, we have spent a lot of time on child poverty, and the IFS projections do not take account of quite a few matters. They certainly do not take account of any change in government policy. Child poverty, to people’s surprise generally, actually went down last year, and it is projected to go down this year. What happens in future will depend on how we respond. I should point out to the noble Lord that the IFS had some very positive things to say about the impact of universal credit on child poverty, and it has pointed out the impact that universal credit will have as it goes in the direction that he and indeed I want to see.

Let me go through some of the figures on what happens under universal credit for a parent with a disabled child who works 20 hours a week on minimum wage. That parent, and that family unit, is likely to be £73 a week better off in work under universal credit, compared with £13 in the present system under tax credits. There are some 30,000 more families with a disabled child in work than out of work, so that extra money is being targeted pretty effectively.

Let me remind noble Lords again about the figures for the support that we are providing. Under universal credit, an out-of-work family with a disabled child can receive just over £8,000 a year in benefits for its child after introduction of universal credit, compared with just over £4,000 for an out-of-work family with a non-disabled child and around £1,000 for a family that receives only child benefit.

[Baroness Wilkins]

The Minister said that those children will receive £8,000. They are receiving £9,500 under the current rules.

[Lord Freud]

The figure that we have on the average amount is £8,800. There is a 5 per cent difference in the overall package for that family under universal credit. Those are the figures that we have worked out for the average. Taken overall, it is a small decline, and clearly there is a substantial incentive for the family to look at work. Work becomes much more attractive. Even a few hours of work under universal credit becomes attractive in a way that is completely impossible today.

[The Countess of Mar]

How can a single mother with a severely disabled child go out to work?

[Lord Freud]

My Lords, we are talking about severely disabled children receiving the full rate of £77. That is the point: we are trying to direct the money towards the people with the greatest need regardless of their age. That is what we are trying to do here.

[Baroness Meacher]

We have to be very clear about this. One of the main reasons for this amendment is the fact that it is so difficult to divide those who are eligible for the higher rate from those who are not. There is often a very narrow—and fairly arbitrary—margin. They just happen not to need to be disturbed at night, but during the day the costs may be even higher—the disruption to the family, the impossibility of working—all those issues are possibly just as great for those who will not qualify for the higher rates. It is really important to hang on to that.

[Lord Freud]

My Lords, this is a really important point. It may very well be that the concern of the House actually boils down to a discomfort with the dividing line between severely disabled and disabled. If that is the case, the way to do it—and I pick up what my noble friend Lord Newton was saying—is not to look at aspect or concrete ratios but at the precise issue that noble Lords are actually worrying about, which is the relationship. I will commit to having a very close look at this. It is clearly tied up with DLA definitions, which are under constant review and are being reviewed.

If we move the children from DLA to PIP, we need to look at this and there will be a real consultation process. I will review this dividing line and look at that very closely, and when we come to the regulations on this, I will report back to noble Lords on exactly what we find. My sense is that this is the real issue underneath all this. I know noble Lords had to find an amendment that had to weave through, to express this concern, so we all know what is happening on a technical basis. Let us go to the real issue. The real issue is: are we getting the dividing line right? People ask me if I am listening—I hear what noble Lords are saying; this is what I think noble Lords are saying, and I will go and do something about that.

[Baroness Howarth of Breckland]

I do not think that is the whole issue that is concerning noble Lords. There is another issue, about the context. If you expect a single mum to get work in order to benefit from universal credit, you should go out on to the highways and byways with these women, as I do, and try to get a job. You need to be part-time, you need to work within certain time constraints, and you need to be able to get specialist childcare if you are going to go out. It is about more than being proportionate, it is about understanding the nature of life when you have a disabled child, however severely along the spectrum that might be, because some behaviour disorders, which sometimes can be assessed as reasonably manageable, can be extraordinarily difficult to get someone else to manage outside your family home. As I said to the noble Lord recently on another point, if you compare the unemployment figures and the numbers of part-time jobs with the number of those women who would like to work getting into those jobs, there is also that contextual issue that I am sure is concerning their Lordships.

[Lord Freud]

Not just your Lordships—I share those concerns, clearly. One of the things I have been trying to do is to really hone in on the help for people to get them into the right kind of work. We have now substantially rebuilt the payment by results element of Welfare to Work. That is not about saving money; it is about making sure that the support is very individualised for people. We will have the formal national statistics on this later this year, but the anecdotal feedback that I am getting from providers is that that individualisation of support for people is really beginning to work. That is a real issue that needs to be addressed. We need to support people back into the workplace when they can work, but we also need to get severely disabled children, who will move into adulthood still needing to be supported, to this higher rate and not have this cliff edge.

The blunt truth is that if we got rid of this cliff edge and maintained higher levels for less disabled children—that is the set of choices that we are playing with here—the cost would be £200 million a year. When things are better, I can quite imagine any Government being very keen to put money in that direction. However, as noble Lords will know, you get an amendment here and an amendment there and pretty soon the amounts add up in a way that really damages our national finances. We can blame the Treasury if we like, but that is a real constraint. We have already looked at amendments the proposals of which we have totalled up to cost in excess of £5 billion over five years, and just taking that on the chin and continuing to get rid of the cliff edge would cost another £200 million, as I said. Those are the choices. We have done a lot of soul-searching on this, and our view is that it is right and fair to align the extra amounts payable for disabled children and disabled adults.

I will close with two points. First, we are trying with the universal credit to bring coherence and simplicity to our benefit support for people. I cannot tell noble Lords how difficult that is to do in practice. I spend every moment of the day when I am not here with your Lordships trying to do that and wrestling with issue after issue. It is very simple; if you are asking someone a set of questions, when do they turn off? How many questions can you ask? You have to simplify the whole system. One thing that I have appreciated more than anything else in the weeks in which we have gone through this Bill is that this House has supported absolutely consistently the introduction of a universal credit. It has understood what we are trying to do and the pressure and the need for coherence and consistency, and I am really grateful for that support. I ask the House please to maintain that support now, especially as we have already voted on this principle.

Finally, I will pick up the point made by my noble friends Lord Newton, Lord German and Lady Thomas that this is a matter for regulations and not for primary legislation. Noble Lords have sent a very strong message to me and to the Government. I will look at this issue and we will be able to discuss it in our debate on the regulations.

16:30

[Lord Patel]

My Lords, on a point of order, will the Minister confirm that we cannot amend regulations? He has asked us to give them consideration and committed to bringing them back, but whatever he brings back will have to be either accepted or rejected.

[Lord Freud]

My Lords, I hope that noble Lords by now have got a flavour of how I try to work with them. I listen and I take on board what people say. I will aim to shape the regulations in the light of that. I am more than happy to—

[Baroness O'Cathain]

I have listened avidly to this debate and been very moved by a lot of it. I also have some experience. I can see that the position is extremely difficult. On the point made by the noble Lord, Lord Patel, about not being able to amend regulations, I should like to ask my noble friend whether he can throw out regulations and put new regulations in their place. I know that we have mixed up concrete and aspic. It is not that regulations are fixed in concrete and cannot be changed—I understand that. However, if we voted saying that the regulations were not appropriate, could we have other regulations?

[Lord Freud]

That is exactly what happens with regulations—

[The Countess of Mar]

If the House of Commons throws the regulations out, they can be thrown out; but if we throw them out, the House of Commons can ignore it completely.

[Lord Freud]

No, my Lords. Without wanting to get into a huge constitutional debate about this, my understanding is that if the House of Lords threw them out, there would at some stage have to be a satisfactory set of regulations that both Houses could agree. So it is a very powerful thing to do. Clearly, I would hope never to get into that position, which is why—

[Lord McKenzie of Luton]

What the Minister says about affirmative regulations is right, but is he aware that it is the stated position of the Conservative Party in this House that it does not vote against affirmative regulations? In recent times we have had several such debates, and the Conservative Party has declined to do this on principle.

[Lord Freud]

When we were in opposition we certainly did not vote on a fatal basis, which was our policy. If the House feels strongly about a set of regulations and the Opposition do not have such a self-denying ordinance—which I think they do not—they can express their view in a vote on the regulations.

[Baroness Hollis of Heigham]

My Lords, the Minister is encouraging us to defy all the conventions of the House. Perhaps I may say gently that he really should not go down this path. First, the noble Lord, Lord Patel, is absolutely right: you cannot amend regulations. If you could, you would be in the game of primary legislation, because you would be toing and froing. Equally, if the House of Commons were to pass those regulations and we decided to overturn them, then the non-elected House would be overturning the will of the elected House. Both major parties have respected—I repeat, respected—that convention for the full 20 or so years that I have been in your Lordships’ House.

[Lord Trimble]

Before the Minister replies to that intervention, perhaps I may suggest that we are getting bogged down on the question of amending or rejecting regulations. I thought that the Minister indicated that, before we get to the point of regulations, he will look at this closely, consult people and speak to people. That is where the conversation should be and where the attention should focus at the moment.

[Lord Freud]

I thank my noble friend Lord Trimble for that. That is the position. I have heard strong arguments here and very great concern. I will talk to noble Lords before we get the regulations out to make sure that they find the regulations acceptable. I give that undertaking now. I beg the noble Baroness to withdraw her amendment.

[Baroness Meacher]

My Lords, I feel a huge weight of responsibility here. The Minister does not want me to test the opinion of the House, and I understand that, but hundreds of thousands of families all over the country with disabled and severely disabled children are desperate about this issue; I repeat, they are desperate. The pressure of that is difficult to bear. But I do want to say that I respect very strongly the Minister, the noble Lord, Lord Freud, for the huge amount of work that I know he does all the time on working towards a simpler welfare system. He has done a fantastic job on this. But, as he knows, the job of this House is to try to ameliorate the worst effects of legislation, and that is what we have done consistently throughout this process. The Minister has generously agreed to take back and think about these issues following the moving speeches that have been made by many noble Lords, but the fact is that we in this House do not have an assurance that anything will happen.

The Minister is under huge pressure from a Secretary of State who is an awfully long way from this. I think that he has little real understanding of what it is to be a poor family with a very disabled child and not able to afford to give to that child what they know it needs. I have concerns about that because we need the Government to understand the enormity of the pressure on these families. I have often said to my own children that I do not think I could have managed it at all because these things are so tough. That is the situation here.

The Minister referred to a cliff edge at the age of 16. The noble Lord in his place beside me referred to a cliff edge at the age of three. The worry is that what the Government are doing is introducing a cliff edge at birth and then at one, two and three, when severe disability hits. Do we want these families to fall off a cliff—and that must be how it feels—when they realise that they have made a lifelong commitment to care for a child but the state withdraws some of its support? That is a big issue for us.

The Minister referred to DLA funding swimming lessons, school holiday clubs and so on. The reality is that DLA does not cover adequately those expenditures, and that is the issue. Families do not have enough money, and it is why 40 per cent of them are in poverty. They need more money if they are to help their children fulfil their potential, whatever that potential may be. The Minister also referred to families being better off in work. I accept that, but the difficulty is that that is being achieved by impoverishing an awful lot of people, some of whom can work—speaking for myself, I support the Government’s quest to get more and more people back into work. But when we consider families with disabled children, particularly single parents with disabled children, as others have said, they cannot do this and it is terrible to impoverish them.

That is the dilemma we are facing. I know that the Minister is going to be deeply unhappy with me and I do not like making him deeply unhappy, but I owe it to the families out there to test the opinion of this House. We have to do it.

16:38

Division 1

Ayes: 246

---

Labour: 164
Crossbench: 59
Liberal Democrat: 7
Conservative: 2
Bishops: 2
Independent: 2
Democratic Unionist Party: 1
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 230

---

Conservative: 151
Liberal Democrat: 58
Crossbench: 16
Ulster Unionist Party: 1
Independent: 1

EU Council

Tuesday 31st January 2012 Lords Chamber

Statement

16:53

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, it may now be a convenient moment for me to repeat a Statement made by the Prime Minister earlier this afternoon on the European Council. The Statement goes as follows:

“With permission, I would like to make a Statement on yesterday’s informal European Council. Countries right across Europe need bold action to recover their economic dynamism, to get to grips with their debts and to secure growth and jobs for the future, and that was rightly the focus of this Council.

First, we agreed important measures needed to restore Europe’s competitiveness. Next we discussed the separate intergovernmental treaty on fiscal discipline in the eurozone. Finally, we issued a statement on Iran, Syria and Burma. Let me take each in turn.

Britain’s agenda in Europe is to promote growth, competitiveness and jobs. We have repeatedly said that the best way that the EU can drive growth and create jobs is to complete the single market; to establish trade deals with the fastest growing parts of the world; and to cut the regulatory burdens on business. At this Council, we made important progress on all these issues. We agreed to establish a fully functioning single market in services, where there are still 4,700 professions across Europe to which access is regulated by government; and, in digital, where there are over a dozen separate copyright regimes in what should be one single market, we will take action to secure what should be a fast-growing area right across Europe. Together, these changes in services and digital alone could add more than 6 per cent to EU GDP within 10 years.

We also agreed to complete the energy single market, which has the potential to cut costs for businesses and consumers across Europe. On free trade, we said that:

‘2012 should be a decisive year to move ahead on trade agreements with major partners’,

such as Japan, India, Canada and the United States, and on regulation we agreed a growth test to ensure,

‘that all actions at the European Union level fully support … growth and job creation’.

We also agreed to reduce regulatory burdens, especially for SMEs and microenterprises, and to complete a patent package to support innovation. This has been discussed in Europe for well over a decade and, finally, we are making decisive progress.

Next, on the eurozone, we want the eurozone to sort out its problems. They are having a chilling effect on our own economy and tackling them is one of the best ways in which we can help secure growth, both here in Britain and right across Europe. As I have repeatedly said, short-term steps must be taken—and taken properly. There was the so-called October package. Europe’s banks must be recapitalised properly. The uncertainty in Greece must be brought decisively to an end, and the firewall needs to be big enough to deal with the full scale of the crisis and the potential contagion. In the longer term, proper fiscal discipline in the eurozone is clearly an important part of the solution, and something that Britain recognises is necessary.

The question has never been about whether there should be greater fiscal discipline in the eurozone but rather how it should be achieved. I went to the European Council last December prepared to agree a treaty of all 27 countries, but only if there were proper safeguards for Britain. I did not get those safeguards, so I vetoed the treaty. As a result, eurozone countries and others are now making separate arrangements outside the EU treaties for strengthening budgetary discipline, including ensuring that there are much tougher rules on deficits. So, at this Council, 25 EU member states agreed a new treaty outside of the European Union. Britain and the Czech Republic have not signed up, and we will not be taking part.

Let me deal directly with the issue of the institutions. The new agreement sets out roles for the European Commission and the European Court of Justice. While some of those roles are already permitted through existing treaties, there are legal questions about what is planned. As I said, it is in Britain’s interests that the eurozone sorts out its problems. It is also in our interests that the new agreement outside the EU is restricted to issues of fiscal union and does not encroach on the single market. The new intergovernmental agreement is absolutely explicit and clear that it cannot encroach on the competencies of the European Union and that they must not take measures that in any way undermine the EU single market. Nevertheless, I made it clear that we will watch this closely and if necessary, we will take action—including legal action—if our national interests are threatened by the misuse of the institutions.

The principle that the EU institutions should act only with the explicit authorisation of all member states remains, so let me be clear: this is a treaty outside the EU. We are not signing it, we are not ratifying it, we are not part of it and it places no obligations on the United Kingdom. It does not have the force of EU law for us, nor does it have the force of EU law for the EU institutions or for the countries that have signed it, and there will be no inner group of European countries distorting the single market from inside the EU treaty. That is the fundamental protection we secured with our veto in December, and that protection remains.

Finally, we also made an important statement on developments in Iran, Burma and Syria. Britain has played a leading role in getting Europe to act together on each of these areas. On Iran, last week all EU countries agreed an unprecedented oil embargo, which shows our determination to keep up the pressure on the regime to turn away from any plans to develop nuclear weapons.

In Burma, Aung Sang Suu Kyi has for years been an inspiration to her people and the world. Britain has supported her at every stage and been at the forefront of EU sanctions. Now there are signs of a new moment of opportunity for democracy and we should be prepared to relax these sanctions, but only in stages and in response to reforms. When I spoke to Aung Sang Suu Kyi on Saturday, she emphasised the importance of credible and free by-elections in April. I assure the House that we will be watching them very closely.

On Syria, the Council condemned the continuing violence and repression of the Syrian people. Reports suggest that more than 60 people were killed on the streets of Syria last week alone. In total, more than 5,000 people have been killed, 400 children murdered and tens of thousands of people detained. Today the Foreign Secretary is in New York to support the Arab League’s call for Security Council action condemning the repression and supporting a transition of power. All 27 EU members backed that call for UN action, and if the violence does not end we agreed that we will tighten EU sanctions further. Our message is clear: we will stand with the Syrian people. It is time for all members of the UN Security Council to live up to their responsibilities instead of shielding those who have blood on their hands. The killing must stop and President Assad must stand aside.

In conclusion, Mr Speaker, this was an important Council for Britain. On competitiveness, the single market and trade, Britain is setting the agenda. On action to face down dictators and dangerous regimes in Iran and Syria, Britain is leading the way, and by saying no to a new EU treaty we have protected Britain’s interests. I commend this Statement to the House”.

17:01

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement made by his right honourable friend the Prime Minister in another place.

First, I associate these Benches with the remarks made about Iran, Syria and Burma. On these issues there has been a bipartisan approach and the Government have our full support in the efforts that they are making. However, in relation to the European Union, I am bound to say that I am perplexed. Last month when the Prime Minister came back from Brussels he said, to the dismay of these Benches, that his veto included a veto on the use of EU institutions. That position was reiterated by the Chancellor the day after the summit when he said,

“If we had signed this treaty … we would have found the full force of … the European Court, the European Commission, all these institutions enforcing those treaties, using that opportunity to undermine Britain’s interests … We were not prepared to let that happen”.

Indeed, the Welfare Secretary made the same points this weekend. Yet it is clear from today’s Statement that the European institutions will fulfil their usual role in relation what I would call a new treaty, and the buildings of the European institutions will be used. How can the Prime Minister possibly argue one month that something is a great threat to the national interest and the next that it is a matter of relatively minor significance on which Britain can reserve its position? I well understand that some people may be confused or even dismayed by this turnaround. However, on these Benches we are glad.

I am also perplexed that today the Prime Minister talks of a treaty, yet yesterday he said at the press conference:

“There isn’t a Brussels EU treaty; it doesn’t exist, I vetoed it”.

Yet to my mind it seems to have all the attributes of a treaty. I understand that the Foreign Office made extensive diplomatic efforts to persuade other euro-outs not to sign. Fleetingly it seemed that the Poles might lead a significant number in not joining up, but at the end of the day the only country to put itself in the same isolated and powerless position as ourselves is the Czech Republic. Is the Leader of the House satisfied with this abject failure of diplomacy?

It would also seem that no protections have been secured for Britain. The Government say that protections have been secured about discussions on the single market, but what are those protections? What has happened to the list that the Prime Minister circulated at 2 am at the previous European Council? Was this a serious effort to protect UK national interests or a flimsy excuse for not signing the treaty because ratification would have caused aggro and difficulties in the other place?

The treaty says that,

“the Contracting Parties … take the necessary actions and measures in all the domains which are essential to the good functioning of the euro area”.

Then it goes on to list them: fostering competitiveness; promoting employment; and reinforcing financial stability. They sound like single market issues to me. Can the Leader confirm whether the UK will have observer status at the regular meetings of the 25 so that we know what is going on and whether or not the single market is being discussed? If we do not have observer status, who is going to protect the British national interest at these meetings? Who is going to ensure that deals are not made to undermine the single market? I suspect that it will be officials from the European Commission—the much maligned Brussels bureaucrats. I wonder whether the Leader might not think it ironic that the European Commission—for which I once proudly worked but from which I do not receive a pension—will be this Government’s greatest ally in defending and improving the single market?

There are now growing fears that the scale of austerity required under the compact will not work. The rating agency Standard & Poor’s said that,

“a reform process based on a pillar of fiscal austerity alone risks becoming self-defeating”.

In particular, Article 4 demands that countries reduce their debt levels at such a rate that it will make it very hard for them to grow their economies. Does the noble Lord believe that the economic strategy in the fiscal compact will work? Perhaps he thinks it will because it is a mirror image of the Government’s own policies, but I suggest that those policies are not working.

Yesterday’s summit was supposed to tackle youth unemployment. I wonder what solutions the Government suggested in the light of experience in this country where long-term youth unemployment has doubled over the past year. Will the Government be applying to the European Social Fund for the extra money for apprenticeships, support schemes for young business starters and entrepreneurs that is now to be made available? Will they be applying for the new European Investment Bank support for SMEs and infrastructure? Or, by not signing the treaty, have the Government cut Britain off from the extra help that unemployed young people and SMEs need?

On these Benches, we believe that the summit was bad for Britain, for our businesses, for jobs and for families. There is still no solution to the problems of growth in Europe. The Prime Minister’s veto that never was has been exposed and Britain now has less influence in the European Union than we have had for a generation. Britain deserves better.

17:07

[Lord Strathclyde]

My Lords, I wholly understand why the noble Baroness has to trot out this stuff, which she no doubt gets from the shadow Cabinet, but it is far removed from reality. I very much welcome her own welcome and support for our position and indeed Europe’s position on Syria, Iran and Burma, but when it comes to the eurozone intergovernmental treaty, she has a fundamental misunderstanding of what has been going on over the past couple of months. What we were seeking to defend in the December European Council were British interests, and that is what we did by vetoing a treaty which we believe would fundamentally impact British interests in a negative way. This treaty does not because we are wholly in favour of the countries of the eurozone, and others, sorting out their own fiscal problems, and have supported them in creating this intergovernmental treaty. Therefore, I do not regard it as a failure of diplomacy at all. Indeed, Article 2 of this treaty demonstrates that the treaty shall not encroach upon the competences of the European Union. That is an important safeguard for us.

The noble Baroness asked about the economic strategy and the fiscal compact and whether or not it will work. Most international commentators now agree—and have done so for some time—with the position that the United Kingdom Government have taken over the past 20 months of austerity. It is true that the countries of the eurozone are now seeing that that is the sensible way forward and believe that you cannot buy your way out of a debt crisis. The fact that the informal council spent so much time talking about the growth strategy, about employment, about exports and about completing trade rounds is an indication that throughout Europe we share similar problems, including those of youth unemployment. However, if you look at the forecast that is being made by most international commentators, you will see that Britain, which has had to take the worst of the medicine first, is in the best position for long-term growth. It would be good if the noble Baroness and her party could support us in that.

17:10

[Lord Brittan of Spennithorne]

Does my noble friend agree that, whereas, of course, the Government were fully entitled to decline to sign the new treaty, it was also very wise not to try to deny the use of the European Union institutions to those countries that chose to sign the treaty? To attempt to do so would have been to risk the use against us of qualified majority voting as the normal legislative tool in areas of vital importance to us, such as financial services, to our great detriment?

[Lord Strathclyde]

My Lords, it is always nice to welcome a question from my noble friend on this matter. On this occasion, we chose to reserve our position on the treaty, at least in part, because we recognise that there are problems within the eurozone that need to be tackled. We believe that we are using that reservation to watch the operation of the treaty closely and, if necessary, we will be able to take action if our national interests are threatened. However, the principle that EU institutions can be used only when there is permission from all 27 member states has been safeguarded. Of course, we have a number of legal concerns on the use of the institutions but we do not want to hold up the eurozone doing what is necessary to solve the crisis, as long as it does not damage our national interests.

[Lord Bilimoria]

My Lords, first, in the Statement there is the intention finally to close these free trade agreements with countries such as India. The UK India Business Council, of which I am president, has been asking for this EU-India treaty for years now. Do the Government honestly think that, with the present crisis, it is realistic to be able to conclude such treaties at this time? Secondly, the Government keep talking about wanting fiscal discipline to sort out the eurozone crisis. Can the Government get real? In the growth and stability pact there was no discipline; even Germany did not fulfil the requirements to join the euro when it did so. When are the Government ever going to be able to impose fiscal discipline when there is no sovereign union throughout the united states of Europe? There will never be a united states of Europe. Do the Government think that the Greek crisis will just go away? If Greece defaults, will there be contagion throughout Europe? Are we prepared for that contagion?

[Lord Strathclyde]

My Lords, the noble Lord asks me a load of questions at the end of his intervention which are not my or the Government’s responsibility. They are very difficult questions to answer. We all have to hope that the steps that the eurozone countries are taking are the right ones to prevent the contagion of which he speaks. We hope that they have done that. People like me, who rather oppose a single currency, have pointed out these problems for many years. It is hard to see how a currency union can work without greater political and fiscal union. It may well be that the countries of the eurozone are heading in that direction.

On the noble Lord's first question about international treaties between the EU and other countries, including India, it is, at least in part, because of the state that we find ourselves in and the lack of moving forward on the Doha trade round that I feel confident that the statement made yesterday in Brussels is heading in the right direction. There is a lot of political force behind it and I am sure that the whole House will welcome this strong declaration of coming forward with a long-term treaty between the EU and India.

[Lord Tomlinson]

My Lords, does the noble Lord agree that the tone of the Statement, which I am grateful to him for repeating, was rather arrogant when it spoke about Britain “setting the agenda” and “leading the way”? That is the sort of leadership that this country can well do without—isolating ourselves from the mainstream of Europe. Will the Leader of the House also acknowledge that although he spoke about defending our interests, there is a lot to learn from Mrs Thatcher? She never sought to defend our interests by leaving a Council meeting and walking out. The way she defended our interests was to stay and fight for them. I have a specific question to the Minister. When he talks in the Statement about a fully functioning single market in services, is that supposed to include financial services?

[Lord Strathclyde]

Very much so, my Lords. We want to see the completion of a single market and the digital economy. It is not arrogant to say that the United Kingdom has been at the forefront of the growth agenda. It is Britain that has been pointing out the dangers of overcentralisation, overbureaucratising, and overexpensive institutions that militate against the interests of the free market that will in the long term provide the jobs we need, not just in this country but throughout Europe.

[Lord Higgins]

My Lords, is my noble friend aware that the Prime Minister is absolutely right not to join the proposed new treaty and to distinguish it from the existing treaty? Is he not also right to say that it is essential for the eurozone to sort out its problems? The problem with doing that has been that it has confused the debt problem with the exchange rate problem. The reality as far as Greece, for example, is concerned is that it is inconceivable that it will become competitive at the present exchange rate, however much it is bailed out. There is therefore no way that these matters will be solved until certainly Greece, and perhaps others—one must hope not—leave the eurozone. It is crucial that if they do so, the period of transition should be as brief as possible. The difficulty is that we do not have available in terms of notes and coins a currency that will enable such countries to leave, quite apart from the dreadful problems there will be in the transition over the need to impose exchange controls, which one must doubt the Greek Government’s ability to do. Until that side of things is sorted out, no amount of bailout or fiscal co-ordination will solve the problems of the eurozone.

[Lord Strathclyde]

My Lords, I welcome my noble friend’s words on the principle of the position we took yesterday at the informal Council. As to what he said about the desirability of the eurozone solving its problems, I completely agree and that is very much one of the reasons why what happened yesterday happened. However, some of my noble friend’s analysis is not really a matter for me or the British Government, although we wish the euro well. These matters will no doubt be taken up within the eurozone. There are real challenges for countries such as Greece and, within the eurozone, the balance of trade between different countries. They have chosen a route along which they wish to try to solve this matter, and we should wish them well in their attempt to do so.

[Lord Clinton-Davis]

My Lords—

[Lord Hannay of Chiswick]

My Lords—

[Lord Wallace of Saltaire]

Shall we hear from the Cross Benches and then Labour? We have not yet heard from the Liberal Democrats. We may go around the Benches and there is plenty of time.

[Lord Hannay of Chiswick]

I join the noble Lord, Lord Brittan, in saying that the Prime Minister was extremely well advised not to contest the use of the institutions in the context of this intergovernmental agreement. I would only add, gently, that you cannot reserve your position on a decision that you are not a party to.

Can the Minister now answer a question that I have been asking with a certain persistence without getting any answers: what provisions in the intergovernmental agreement are objectionable to the British Government? He has just spoken warmly about Article 2, and I imagine that he could speak quite warmly about most of the other articles, so why are we not joining the agreement? It is a little difficult to understand. Perhaps the Prime Minister let the cat out of the bag when, with a look of some relief on his face—at least it looked like that on my television set—he said, “Nothing to sign. Nothing to ratify”—and, he might have added, “Nothing to make me run the gauntlet of my Back-Benchers”.

[Lord Strathclyde]

My Lords, if those were his motivations, there would be nothing wrong in that. In fact, the Prime Minister made it entirely clear in response to questions and in his Statement on the December Council that his only aim was to preserve British interests. At the December Council, he asked for certain safeguards and those safeguards were not offered. Hence, we have got to the current position.

As the noble Lord knows extremely well, we have a number of legal concerns about the treaty, particularly on the use of the EU institutions, but, as I said, it is in our national interest for the eurozone to solve its problems. That is why we are reserving our position. I know that the noble Lord, Lord Hannay, asks my noble friend Lord Howell questions from time to time. He will have an opportunity to have another go in a couple of weeks’ time, when we are having an all-day debate on the European Union.

We will be watching developments very carefully over the next few weeks and months, and if there is any sign that they will encroach, particularly on the single market, we will seek to take appropriate action.

[Lord Davies of Stamford]

My Lords, it is at least reassuring that the Prime Minister now appears to be conducting our diplomacy in the EU in a cool, calm and reasoned fashion, although it is very worrying that we shall not, apparently, even be in the room as observers when the 25 meet regularly from now on.

However, I sincerely congratulate the Government on their contribution to the achievement of the single market conclusions of the Council, particularly in relation to energy. I hope that there will be follow-through and implementation.

If Greece defaults, which it may, there may be contagion. If there is contagion, there would be a very serious banking crisis. In those circumstances, it would be extremely expensive for us to bail out our banks. Would it not be much cheaper now to make a more modest contribution to the new financial stability fund, the IMF or otherwise to the firewall which we keep nagging our European partners that they should be putting together without us, up to now, being willing to contribute at all?

[Lord Strathclyde]

My Lords, it is not my role, nor that of the Government, nor is it appropriate to speculate on the position of Greece. Greece has to make its own decisions on that question. Our view is that it is important that all parties should stick to the deal agreed in October and that all the elements of that package, including the PSI, are finalised and implemented without further delay. We are not contributing directly to more bailouts of the eurozone, as the noble Lord knows. One thing that we agreed earlier through the new ESM is that we are extracting the United Kingdom from having to pay for eurozone bailouts in future. IMF payments are of course an entirely different matter, but we believe that the IMF is there to lend support to a country, not to a currency.

[Lord Dholakia]

My Lords, this is one Statement on which the Prime Minister and the coalition Government should be congratulated. There is total agreement on matters relating to the agenda on jobs and growth. Does the Leader agree that now that we are winning the argument we should be looking to work very closely with our allies, including Italy and Spain, to spell out a truly ambitious and far-reaching plan for delivering jobs and growth from now through to 2015?

[Lord Strathclyde]

My Lords, if I may say so, that was an entirely sensible and constructive question from my noble friend Lord Dholakia. We believe that the statement made by the European Union yesterday was an important signal about a change of direction in trying to create a proper market for jobs, services and growth. Of course, we will be working with our allies—not just with the European Commission but with countries such as France, Spain and Italy—so that we can all learn from each other what works, particularly with regard to apprenticeships, and in the long term that will benefit us all.

[Lord Richard]

My Lords, three or four times this afternoon in making his Statement the noble Lord has referred to the fact that at the December meeting the Prime Minister was forced to cast his veto because he did not get the safeguards that he required to protect British interests. The difficulty is that the Government will not tell us what safeguards he was demanding and, until we know that, we cannot tell whether the veto was sensible. Perhaps the noble Lord could draw the veil a little this afternoon. There seems to be an atmosphere of reflective penance on the part of the government Benches today. Can he tell us what safeguards the Prime Minister was demanding that he did not get, as a result of which he felt obliged to cast the veto?

[Lord Strathclyde]

My Lords, it is always beguiling to be asked questions by the noble Lord, Lord Richard, in that manner. The events of the December Council were in fact quite a while ago and I do not have a list of all the great safeguards that we wanted.

[Noble Lords]

Oh!

[Lord Strathclyde]

However, basically we wanted to protect the single market. We also wanted to make sure that we were safeguarded from a financial transaction tax that would have an unfair bearing on Britain within Europe. Unless it was applied on a global scale, we were not going to support it. The noble Lord shakes his head as though I have not been helpful but, if not to safeguard British interests, why else would the Prime Minister have vetoed it?

[Lord Willoughby de Broke]

My Lords, I want to follow the point made by the noble Lord, Lord Dholakia, in reference to competition. Is not this Council statement just a rehash of the European agenda, which was such a notable failure? Does the Minister agree that, as usual, it is all words and no action? Do not figures of 23 million unemployed in the European Union and 51 per cent youth unemployment in Spain show that the European Union is a total failure for its citizens? Would it not be much better to leave before we get sucked even further into the euro mire?

[Lord Strathclyde]

My Lords, the views of the noble Lord, Lord Willoughby de Broke, on this are extremely well known. He believes that there should be a referendum in the United Kingdom about leaving the EU or that the United Kingdom should just leave the European Union as soon as possible. That view is not shared by this Government. We think that in the past the EU has gone in the wrong direction but we are hopeful. The noble Lord may not have read the European Commission’s statement but I hope that he will take the opportunity to do so. I am glad to see he is indicating that he has read it. I think he should be heartened by much of what was said in it about growth, jobs, deregulation and single markets, which will aid prosperity in the long term.

[Lord Trimble]

My Lords, my noble friend the Leader of the House has made reference to implementing as soon as possible the matters agreed last October. However, is that realistic? Last October, there was reference to agreeing a private sector reduction of Greek bonds by 50 per cent. There has been no agreement, and apparently officials are now looking for a reduction in value of 70 per cent, although the chance of there being agreement on that is minimal. Other institutions talk about firewalls and contagion. The EFSF was created but has turned out to be a complete damp squib. There is now talk of bringing forward the next measure but it is similar in character and is also likely to be ineffective. I appreciate that my noble friend has to be diplomatic but is not the reality that that agenda and those agreements are not going to work with regard to Greece? As my noble friend Lord Higgins said, Greece will have to leave. The euro has been a failure as far as it and other countries are concerned, and the sooner the people who are trying to give that leadership to Europe get their heads round that, the better.

[Lord Strathclyde]

My Lords, it is not just diplomatic to say that these are issues that Greece and the other countries of the eurozone need to sort out; it is common sense. My noble friend's gloomy view may come to pass, but we should all fear that. There is a chilling effect on the economy already because of the crisis in the eurozone, and it would be considerably worse if there was a real banking problem in the whole of the eurozone and the whole of Europe, which would leak into us. Therefore, we urge the countries of the eurozone to solve their problem. With the intergovernmental treaty, we have given them the best opportunity to do so.

[Lord Stoddart of Swindon]

My Lords—

[Lord Radice]

My Lords—

[Lord Wallace of Saltaire]

We are out of time.

Welfare Reform Bill

Tuesday 31st January 2012 Lords Chamber

Third Reading (Continued)

17:32

[The Countess of Mar]

My Lords, before we proceed with Third Reading, I apologise to the noble Lord, Lord Freud, and to the House, for so rudely interrupting him on the matter of affirmative instruments. I thank the noble Baroness, Lady Hollis, who unfortunately is not here, for putting matters right. I offer my sincere apologies.

Clause 15 : Work-focused interview requirement

Amendment 2 not moved.

Clause 32 : Power to make supplementary and consequential provision etc

Amendment 3

Moved by

[Lord Freud]

3: Clause 32, page 15, line 34, leave out subsection (3)

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

My Lords, on 22 December last year, the Scottish Parliament voted on a legislative consent Motion to the Bill. Legislative consent was given in relation to several provisions. However, the Scottish Parliament did not give consent in respect of the provisions of the Bill that give Scottish Ministers the power to make consequential, supplementary, incidental or transitional provisions by regulation in relation to universal credit and the personal independence payment. I indicated on Report that I intended to bring forward these amendments, removing the relevant provisions from the Bill, to ensure that the UK Government adhere to the principles of the Sewel convention. As social security is a reserved matter, it will not have an impact on the introduction of universal credit or the personal independence payment. Scottish Ministers will still need to make changes to legislation within the competence of the Scottish Parliament—for example, to add references to these benefits to legislation for housing, health and education, and to remove references to existing benefits that will be abolished in due course. Where necessary, they will do this through a Bill in the Scottish Parliament instead of through regulations. I beg to move.

[Lord McKenzie of Luton]

My Lords, I do not believe that we have a problem with the amendments in this group, but perhaps the noble Lord will clarify something. If we are removing the power of Scottish Ministers to deal with consequential amendments, where does the power lie—or is the Minister saying that there is no need for the power?

[Lord Freud]

No, my Lords, I am saying the opposite. The Scottish Parliament has decided that it wants to make the consequential amendments and not rely on us making them. If Scottish Ministers want to do it that way round, that is a matter for them. We were trying to make life more convenient for them.

[Lord McKenzie of Luton]

I am grateful to the noble Lord. Obviously we support the amendment.

Amendment 3 agreed.

Clause 40 : Interpretation of Part 1

[The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)]

My Lords, before we move on to Amendment 4, I shall inform noble Lords that there has been an error in the printing of the amendment. It should read:

“Page 18, line 40, leave out ‘work has such meaning as may be prescribed’ and insert ‘work’, ‘better paid work’ and ‘more paid work’ shall have such meaning as may be prescribed in regulations subject to the affirmative resolution procedure”.

Amendment 4

Moved by

[Lord McKenzie of Luton]

4: Clause 40, page 18, line 40, leave out “work has such meaning as may be prescribed” and insert ““better paid work” and “more paid work” shall have such meaning as may be prescribed in regulations subject to the affirmative resolution procedure”

[Lord McKenzie of Luton]

My Lords, one issue that lacks clarity at present concerns “work”, “better paid work” and “more work”. We are using the opportunity of Third Reading to elicit further information on this important matter. The amendment seeks to ensure that not only “work” must be defined for the purposes of universal credit, but that there should be clarity on “more paid work” and “better paid work”, and on how the requirements would be applied. The definition of work is relevant to the current benefit system as well as to universal credit. It is relevant for the application of the benefit cap—or cliff edge—on one side of which one is free and, on the other, one is within its grasp. For the benefit cap, we know that initially receipt of working tax credit will be sufficient to take somebody out of its grasp. Perhaps the Minister will say whether there is any further news on what the threshold for work will be in these circumstances in the world of universal credit.

The amendment is principally focused on getting an update on how in-work conditionality will work. It is some three months since we debated this in Committee, when the development of how things would work in practice was pretty sketchy. What appeared to be settled was that in-work conditionality would cease when somebody was earning the equivalent of 35 hours at the national minimum wage: approximately £11,000. The threshold for a couple may be double that of an individual, and the threshold for a lone parent may be lower. It is accepted that having a universal benefit that removes the distinction between in-work and out-of-work benefits raises the issue of in-work conditionality. Universal credit claimants will have an entitlement regardless of the hours they work, up to a limit. Before we leave the Bill, or it leaves us, we seek an update on the latest thinking. Presumably, for universal credit to be effective, this is not an optional extra.

On 26 October in Grand Committee, the noble Lord told us that there were a range of complicated issues to work through. He said:

“Critically, we will need to build our understanding of what can help claimants progress—when we should require claimants to look for more work and what role other interventions, such as skills assessments or careers advice sessions, can play … We are not rushing in here ... We recognise that we need to tread carefully in this new area”.—[Official Report, 26/10/11. cols. GC295-96.]

That was fine, but is there any progress to report? My noble friend Lady Drake put the issue very succinctly in the Committee debate. She referred to the significant discretion that the Government would have under the new arrangements: a discretion that would potentially impact on a sizeable section of the workforce and on existing in-work relationships, and would require Jobcentre Plus or outside providers to engage with a large number of companies.

In Committee there was vagueness also in respect of the roles of Jobcentre Plus staff and external providers, and on issues of capacity. In particular, there was no clarity on how this would fit in with the work programme. We know that remuneration for providers under the work programme will come in three ways: an attachment payment, a job outcome payment and a sustainment payment. The latter will be the biggest element of the fees in each of the eight claimant groups. How will in-work conditionality interrelate with the work programme? Will sustainable payments be due only when providers have not only helped somebody into work and sustained them in work, but sustained them in work at a level that meets the requirements of in-work conditionality? Presumably this was not effectively factored into contract negotiations ab initio because of the vagueness around these concepts. Do the work outcomes for which providers are paid align with the in-work conditionality that is proposed, and include the claimant commitment on a case-by-case basis?

In Committee, there was a hint that in-work conditionality might be applied only when somebody has left the work programme. The Minister said:

“Once claimants have left the work programme, we could then look to continue working with them to help them progress”.—[Official Report, 26/10/11; cols. GC 295-96.]

There was also a hint that there might be a future work programme to which individuals would migrate. What is happening on that? If one is to be developed, can we be assured that the lessons of the first work programme and the comments of the National Audit Office are taken fully into account, especially on compiling a business case before a decision is taken to proceed and on going live before the IT is in place?

The definition of “work” and, especially, new issues around “more paid work” and “better paid work” are important to how universal credit is to operate. This is an opportunity to provide up-to-date information to noble Lords at this last stage of our deliberations. I invite the Minister to do so. I beg to move.

[Lord Freud]

My Lords, before I start on the specific matter, I shall take a short period to thank the noble Countess, Lady Mar, for her remarks a few minutes ago which I appreciate.

This amendment relates to the definitions of “better paid work” and “more paid work” and would require the regulations to be subject to the affirmative procedure. The first point I want to make is that it is not necessary to define these terms. They have their natural meaning: working for more hours, increasing your pay and so on. To that extent, we cannot accept the amendment, but I understand that it is a way of looking for information and I am very happy to have the opportunity to provide it.

These phrases are important. Their inclusion in Clauses 15 to 18 allows us to impose work-related requirements on claimants who are already in work. We are currently able to impose requirements on existing JSA claimants who are in some work and we need to retain this capability. Obviously, we are interested in doing more and extending conditionality to claimants who are in relatively substantive levels of work but who are nevertheless capable of working more. A conditionality regime can play an important role in encouraging such claimants to progress towards more self-sufficiency and to raise their standard of living and general status. Clearly, I understand noble Lords’ concerns about the extension of conditionality in this way. It is new and it is a difficult area. I also understand the way that noble Lords want to stay in touch with developments as they progress, so let me reiterate and perhaps expand on the remarks I made on Report.

At the launch of universal credit, we will not be imposing conditionality on claimants in substantive employment. In other words, there will be no conditionality for claimants with income or earnings which would, broadly speaking, have taken them over the cut-off point for current out-of-work benefits. We will retain our emphasis on those claimants who would be eligible for JSA, ESA or income support now. The existing system, in that sense, will continue.

As a general point about how we are going to introduce universal credit, we are trying to be incremental and to lock in gradually the opportunities that it represents. Before we extend conditionality to claimants with earnings above this level, we will run pilots. We want to gather views on the approaches that could be taken in these pilots and we will therefore be consulting widely. Depending on the design, we expect such pilots to require regulations. They will be subject to the affirmative resolution procedure and therefore to debate in Parliament. I think we have had enough discussion about what that means. I thank the noble Baroness, Lady Hollis, on that point. I have committed to publishing details of any pilots, to monitoring the results of the pilots, in particular, the outcomes for claimants, and to making those results available for scrutiny. We will reflect on this before adopting any national approach. I remind noble Lords that we considered and passed an amendment that I tabled earlier to allow us to test every aspect of universal credit to see how it would change. This is clearly one area where we could do a lot of testing about how different things work.

17:45

Picking up the point on the relationship with the work programme, if we look at the timetable of the introduction and at what we are doing, noble Lords who can picture calendars years in advance will see that there is a point at which we are going to go to round two of the work programme, which works rather neatly with the timing of bringing in some of the results and outcomes. One of the options we will have at that stage is to look at encouraging work programme providers in a much more sophisticated way not just to get people into work and keep them in work, which are the main criteria today, but to get them into work and to progress in work. That is attractive as an option to be explored because we will start to pull together even more than we are now the work first strategies, which have been the historic drive of the DWP, and the training and upskilling strategies, which in the past have been far too separate. If we have a progression target, we will start to pull in training in a tougher way. It is beginning to be pulled together with the effort to keep people in work, but noble Lords will know that one of my ambitions is to pull those two aspects much closer together through the structures. That is one of the things that I will be looking at very closely as we look at designing these pilots.

I hope that what I am saying is interesting and reassuring. We are giving a clear undertaking that we will proceed carefully, consult widely and make our proposals open for scrutiny. On that basis, I hope that the noble Lord will withdraw his interesting amendment.

[Lord McKenzie of Luton]

Before the noble Lord sits down, I thank him for that full response, but can he deal with the point about whether there has been any development of the definition of work for the operation of the cap in universal credit?

[Lord Freud]

No, my Lords, I am not aware that we have locked that down at this time. It is an issue that we are going to have to address when we lock down universal credit. I cannot update the noble Lord on that matter.

[Lord McKenzie of Luton]

My Lords, I am grateful for the update that we have had. I guess that we just look forward to further developments on those issues. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 43 : Regulations: procedure

Amendments 5 and 6

Moved by

[Lord Freud]

5: Clause 43, page 20, line 21, leave out from “Regulations” to “are” in line 22 and insert “under this Part”

6: Clause 43, page 21, line 19, leave out subsection (8)

Amendments 5 and 6 agreed.

Clause 46 : Sanctions

Amendment 7

Moved by

[Baroness Hayter of Kentish Town]

7: Clause 46, page 25, line 7, at end insert—
“(c) the grounds on which such sanctions may be terminated, prior to the period specified in paragraph (b), including the compliance of the claimant to such conditions as may be imposed.”

[Baroness Hayter of Kentish Town]

My Lords, this amendment seeks clarification on the issue of what the Minister called “the prodigal son” when he referred to it in earlier discussions. I think that takes government paternalism perhaps a little too far. It relates to the situation of a jobseeker who has received a three-year sanction for a failure to comply with the requirements imposed by this legislation and the circumstances in which that sanction may be removed. This is important because in order to change behaviour, which we know is one of the great motivators behind the Bill, there really must be some carrots as well as sticks.

The three-year sanction is the stick, but the carrot has to be that people who start co-operating and fulfilling the work-search conditions should be able to work towards lifting that sanction. Their behaviour may well change because something in their own life has changed—the death of a parent they were looking after; the birth of a child; a marriage or a break-up; dealing with their own substance misuse; or simply, maybe late in life, growing up—or it may change as a result of the three-year sanction. For whatever reason, it must be possible for the sanction to be lifted, and this amendment requires that the grounds on which the sanction could be lifted should, first, be prescribed in regulations and, secondly, should include the claimant’s compliance with the work-search conditions.

On Report, the Minister told us that he had accepted this principle on ending the sanction and we very much welcomed his words on that. He said that it was,

“a lot better than where we were”.—[Official Report, 14/12/11; col. 1387.]

However, he also said that the department had decided that the proof of the prodigal son’s return was to be in work for six months. Of course, it partly depends on the definition of work, to which my noble friend has just alluded—going for just one hour a week is probably not what the Minister had in mind—so regulations will have to deal with that. Whatever the definition is going to be, we think it means that at that point the sanction will be removed. However, without our amendment, we are not absolutely clear that the three-year sanction can be lifted before the three years are up. It appeared so from the Minister’s words at Report but perhaps he could clarify that the Bill allows not just for a lower sanction to be set at the beginning but for the lifting of a sanction before its end. Clause 27(5)(a) allows for the lifting of the other sanctions but the Bill appears to be silent on the lifting of these higher sanctions.

However, assuming that the Bill does allow for such higher-level sanctions to be ended early, we nevertheless do not believe that having to be in work for a full six months is the right hurdle. First, it gives very little incentive for the claimant to engage with the jobcentre and to meet the conditions set, which would help that person to find employment through all that will be offered by Jobcentre Plus or other providers. Secondly, it would mean that the possibility of having the sanction lifted will depend not only on factors within the claimant’s own control, such as looking for work, but on factors well outside his or her control such as local and indeed national economic conditions.

I do not need to remind the House that there are 5.8 unemployed people looking for every job. A claimant who happens to be one of the 4.8 unlucky ones who, despite everything they do to try to find a job, cannot get work—perhaps because they live in Merthyr Tydfil, which I think was the example given on Report—will continue to receive a sanction through no fault of their own. This turns the sanctions regime into a punishment for previous failures rather than a useful tool to encourage engagement with the jobcentre and the work programme providers.

Our amendment leaves the exact formula for compliance open to regulations, as we know the noble Lord will listen to arguments made in the drawing-up of those, and it will give the Minister and his department a chance to think through the best way to ensure that the sanctions regime provides suitable incentives to engage with the system rather than cutting people off altogether. One obvious suggestion might be to lift the sanction after a period of compliance with the work-search conditions, but the detail could be left to the department as it also struggles with the definition of work.

Without our amendment, the Bill risks driving people further from the labour market rather than moving them towards work by engaging with the process and fulfilling the work-search criteria. I hope, therefore, that the Minister will be able to accept the amendment. I beg to move.

[Baroness Hollis of Heigham]

My Lords, I strongly support the amendment moved by my noble friend. Throughout Committee and Report, the Minister has regularly made clear that he is concerned to make work pay and attractive, and to get behavioural change. I do not think that we on this side disagree with him at all on this. However, it subverts the value, virtue and continuity of behavioural change if sanctions that were applied before that behavioural change had taken place continue. Therefore, he is effectively defeating his own policy.

I was trying to think of an example. On page 33 of the Bill, proposed new Section 6J, “Higher-level sanctions”, which my noble friend referred to, says in subsection (2)(a) that a failure is sanctionable if a claimant,

“fails for no good reason to comply with a requirement imposed by the Secretary of State under a work preparation requirement to undertake a work placement of a prescribed description”.

A couple of weeks ago we had the story of a young woman, a graduate, who had been doing voluntary work in a local museum and was hoping that this would count as appropriate work experience to lead her to a job in that field. The work requirement placement that the local office came up with was that she should do a fortnight in Poundland, filling shelves, even though she had substantive previous retail experience; in other words, it was a very misguided imposition by the decision-makers in the local benefit office—from the outside, it looked as if she was much better off where she was. If she had refused that placement in Poundland, she would have fallen foul of 6J(2)(a) and she could have had three years’ worth of sanctions imposed on her, even if she had subsequently accepted a further placement, which would have been—in her view, and most people’s views—more realistic.

The Minister is stuck with the position that she would have been pulled out of something appropriate to do something less appropriate on the decision of a local decision-maker, and had she resisted that she could have been subjected to sanctions that would have continued for three years, even if she had made it clear that she was willing to accept further and more appropriate work placements that would help her with her career. It must be sensible for the Government to have a way back for people who have resisted—for good reason or bad—an original work placement offer but then go on to respect that imposition, whether appropriate or not. If there is no way back, how can the Minister expect people to respect that law?

[Lord Skelmersdale]

Perhaps the noble Baroness, Lady Hollis, could turn over to page 34 of the Bill. New Section 6J(7)(c) talks about,

“the termination or suspension of a reduction under this section”.

That sounds like exactly the sort of principle that the noble Baroness, Lady Hayter, has enunciated in moving this amendment. I that hope my noble friend will be able to confirm that.

18:00

[Lord Freud]

My Lords, let me cut straight to the chase. We have the powers in regulation to do whatever we or any future Government want to do to raise sanctions, so I can provide reassurance to that extent. I will go into a little detail about our plans and what we intend to do, but first I pay tribute to noble Lords because some really interesting and useful ideas were expressed in Committee that we took on board, although I do not think that we took them on board quite as much as some noble Lords would want. We moved a long way and thought about this again more specifically, so I thank noble Lords a lot for that.

We are trying to create a sanctions regime to provide at one level—probably the most important—a deterrent against behaviour that damages a claimant’s and indeed others’ employment prospects. Ending sanctions when a claimant complies with requirements can clearly play a role in incentivising sanctioned claimants to do the right thing. That is why we are moving in the direction of open-ended sanctions for lower-level failures, such as the failure to participate in training or to attend work-focused interviews. In essence, these sanctions apply only until the claimant re-complies, with a short fixed period of a week or a few weeks.

This amendment is about the higher-level sanctions: sanctions imposed for failing to comply with the most important requirements. These are employment-related failures, such as the failure to apply for a job when specifically asked to do so, the failure to accept a job offer, or the failure to leave employment voluntarily. By failing to do these things for no good reason, a claimant is fundamentally breaking the agreement that sits at the heart of jobseeker’s allowance: that they do everything possible to find work in order to be able to support themselves. That is why we believe it is vital that there are clear consequences for such failures. Fixed, substantive sanctions reinforce the message that these requirements absolutely must be met.

As I said on Report, we propose to wipe the slate clean by terminating any outstanding sanctions once a claimant has moved into employment for six months, but we believe that going further and ending these critical sanctions after a few weeks or months of compliance would undermine the clarity of our message and the effectiveness of the sanctions regime. It is worth noting that in the current system sanctions can be imposed for up to six months and are typically not lifted at all on re-compliance.

As I said at the beginning of this debate, we have the powers to end sanctions following re-compliance—we have defined the levels of re-compliance—so if, after a period of live running, we or future Governments wish to change the position, we have the powers to do so. Indeed, this is one area in which it might be very interesting to do some piloting work on how incentives and deterrents actually work.

Just to be techie about this, the powers that I mentioned are in this Bill and in the Jobseekers Act 1995. Clause 19(4)(b) provides a broad regulation-making power to set the duration of a sanction. Existing Section 36 of the Jobseekers Act allows for any regulations made under that Act to be subject to particular exceptions. I am not absolutely surprised that no one could piece that together.

[Baroness Lister of Burtersett]

I thank the Minister for the techie stuff, but what happens to someone who has been subject to a sanction, goes into paid work, through no fault of their own loses that job before the six months is up, then assiduously looks for work daily, just as they are supposed to do?

[Lord Freud]

My Lords, under this construct, they will have to do the six months to wipe off the sanctions. Let us not forget that the sanctions that we are talking about do not involve the full amount of support but the equivalent of the JSA—£63-odd. There will be a very strong incentive on that person to take absolutely anything to fill in the rest of the time.

As I said, this is a very interesting area of deterrence and compliance and how we influence behaviour, which is exactly why I wanted to have the powers to pilot all these things. This is our starting point. Noble Lords have influenced us into making the lift at the six-month level, and it is clearly our best view today on what the reasonable balance is. No one can know yet as we have not done the live testing, but we will do it and we will be able to look at this and get the balance absolutely right. It might need to be milder, it might need to be tougher, but noble Lords will appreciate that if we pilot and test and look at these things in the way that I am describing, we will start to get answers on what works and move away from some of the rather more excited commentary and pressures from some of the media in this area. It could be of great interest to noble Lords if we start to move this into a social science area where we know the answer as opposed to an area where everyone has an opinion.

With those thoughts, I urge the noble Baroness to withdraw her amendment.

[Baroness Hayter of Kentish Town]

My Lords, I thank the Minister for passing the test on the regulations—obviously I knew; I was just testing him—and finding that out, which I had obviously failed to do.

As I said earlier, we welcome the fact that the Government have undoubtedly accepted that the three-year sanctions need to be lifted in certain circumstances. However, questions remain, some of which could be dealt with in regulations. For example, people need to know what the carrot is and what they have to do to get sanctions lifted. There is still the problem of defining work, particularly for someone who has childcare responsibilities and the job offer simply does not fit in with their responsibilities.

I am sure the Minister did not mean this, but I also worry about the idea of an incentive to take anything that is offered. Would that not allow certain rogue employers to exploit people on benefits because they know that if there are sanctions they can offer pretty thankless and underpaid jobs? Similarly, I also worry about people leaving a job. There is the problem of the strength of an employer, but those worries are by the by. The biggest thing to say about this is that the idea that you have to get a job to come off sanctions, even if you live in an area where there are simply no jobs available, remains a problem. However, I welcome the Minister’s commitment to pilot and test this. If it proved to be a big stumbling block, I assume that he could come back with regulations to allow for that. On that basis, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 70 : Housing benefit: determination of appropriate maximum

Amendment 8

Moved by

[Lord Best]

8: Clause 70, page 54, line 6, at end insert—
“( ) After subsection (7) insert—
“(7A) In relation to a dwelling of which the landlord is a local housing authority or a registered provider of social housing, and no alternative accommodation (as defined in regulations to be made under this section, and provided by any such provider) is available, regulations under this section shall not permit the AMHB to be less than the actual amount of the liability in a case where a household has no more than one spare bedroom.””

[Lord Best]

My Lords, Amendment 8 gives effect to an amendment which was in my name on Report and to an amendment to my amendment in the name of the noble Lord, Lord McKenzie of Luton, at that stage. These amendments, which addressed the cuts to housing benefit and universal credit for those deemed to have a spare room, were declared to be consequential amendments to two earlier amendments approved by your Lordships on 14 December and now incorporated in Clause 11.

However, the consequential amendments were not moved formally. They should have been. I fear that the complexities of consequential amendments and of amendments to amendments meant that this amendment is now required. With apologies, I beg to move the amendment formally.

[Lord Freud]

My Lords, I accept that Amendment 8 from the noble Lord, Lord Best, is a duplicate of previous Amendments 49 and 49A, which related to Clause 68 and should have been formally moved during Report stage. We find the veil and draw it as to why they were not. The Government acknowledge that it was the view of the House, following the vote on the amendments in the name of the noble Lord, Lord Best, on 14 December, to have those amendments made. Essentially Amendment 8, which is a duplicate of Amendments 49 and 49A, would mean that a reduction is not possible where the tenant has no more than one spare bedroom unless suitable alternative accommodation, which is to be defined in regulations, provided by a local housing authority or registered provider of social housing is available. I am clear that to complete that picture Amendments 49 and 49A should also have been made.

The Government regret that the House reached such a conclusion on the social sector size criteria. While I do not intend to oppose these amendments now, I should make it clear to this House that this is not an indication that the Government agree with the overall principle of the amendment proposed by the noble Lord, Lord Best. It is now for another place to consider this when the Bill returns there.

Amendment 8 agreed.

Clause 93 : Power to make supplementary and consequential provision

Amendments 9 and 10

Moved by

[Lord Freud]

9: Clause 93, page 62, line 21, leave out “The Secretary of State may by regulations” and insert “Regulations may”

10: Clause 93, page 62, line 24, leave out subsections (2) and (3)

Amendments 9 and 10 agreed.

Clause 95 : Regulations

Amendments 11 to 13

Moved by

[Lord Freud]

11: Clause 95, page 63, line 8, leave out “unless otherwise provided”

12: Clause 95, page 63, line 21, leave out from “Regulations” to “are” and insert “under this Part”

13: Clause 95, page 63, line 34, leave out subsection (8)

Amendments 11 to 13 agreed.

Clause 146 : UK child poverty strategies

Amendment 14

Moved by

[Lord McKenzie of Luton]

14: Clause 146, page 109, line 4, at end insert—
“( ) Nothing in subsections (1) to (5) have the effect of changing the requirement in the Child Poverty Act 2010 for the Secretary of State to publish and lay before Parliament a UK Child Poverty Strategy and to describe the progress that he considers necessary—
(a) to meet each of the targets in sections 3 to 6 of that Act in order to reach these targets by the end of the target year; and(b) the progress he intends to make in the period covered by the Strategy to ensure that so far as possible children do not experience socio-economic disadvantage.”

[Lord McKenzie of Luton]

My Lords, Amendment 14 seeks further clarification about the purpose of the changes that the Government introduced to the Child Poverty Act on Report. These altered the description of what the Government would do to achieve the target to end child poverty by 2020, as set out in the Act, from making progress to taking measures. Having reviewed the text after Report stage, we are concerned that this alters the substance of the Act to require the Government’s child poverty strategy only to set out what they propose to do rather than the progress they intend to make; that is, to remove the duty on the Government to make progress towards the targets.

The amendment was laid at the end of our deliberations and proceedings on the last day of Report. We probed this a little on Report, when the Minister reassured me that the amendment was intended to clarify the Child Poverty Act and not to change the substance or to affect the law. Stephen Timms, the Minister responsible for that Act in the Commons at the time, stated that “Clause 8”, which has subsequently become Section 9,

“requires the Secretary of State to publish a strategy every three years, to set out the progress intended over that three-year period in each of the policy areas specified in subsection (5), and to describe the progress needed over that period to meet the 2020 targets. In that way, the strategy will set milestones to 2020”.—[Official Report, Commons, Child Poverty Bill Committee, 27/10/09; col. 142.]

Will the Minister confirm that this is the function that the strategies will still play; that is, that they will both set out the progress that the Government intend to make and the progress needed to meet the 2020 target?

Our amendment would ensure that this substance of the original Child Poverty Act would remain the substance of the current version. If the Minister does not feel able to accept it, will he describe for us the difference between what he proposes should now be in the Act and the original version, so that we can have a second chance to assess the merits of each? I beg to move.

18:15

[Baroness Lister of Burtersett]

My Lords, I support the amendment. It is important that there has not been a change in meaning. I know that the Government have their doubts about targets and so forth but they are very important in terms of accountability. I talked a lot last week about accountability in relation to the Social Fund. This is accountability in terms of organisations which are very concerned about what is happening as regards child poverty and enabling them to know what progress the Government are making and are intending to make. I know that certain voluntary organisations are very concerned about child poverty and that there has been a slight shifting here in meaning that could make their job that much harder.

[Lord Freud]

My Lords, Amendment 14 is designed to place a caveat on the amendment to Section 9 of the Child Poverty Act which is already included in the Welfare Reform Bill. As I discussed on Report last week, the amendment to Section 9 is a clarification which confirms the Government’s existing understanding that the requirement in Section 9(7) of the Child Poverty Act for a UK strategy to describe progress can be met with a description of progress in narrative or policy terms, rather than in numerical or statistical terms.

This amendment appears to seek clarification that the changes already agreed by the House will not undermine three requirements on the Secretary of State which are included in Section 9 of the Child Poverty Act; namely, first, that he must publish and lay before Parliament a child poverty strategy; secondly, that he must describe in that strategy the progress that he considers necessary to meet the four child poverty targets by the target year of 2020-21; and, thirdly, that he must describe in that strategy the progress he intends to make over the period of the strategy to reduce socioeconomic disadvantage as far as possible.

I can state clearly on the record that our amendment to Section 9 is not designed to remove the requirement on the Secretary of State to do any of those things. The Secretary of State will continue to have a duty to produce a strategy every three years which sets out the measures that will be taken, and the progress that needs to be achieved, in that period in order to meet the targets by the target year and reduce socioeconomic disadvantage as far as possible. The purpose of our amendment to Section 9 is not to change the substance or effect of the law. The amendments simply clarify how progress can be described—in particular, that it can be described in policy or narrative terms rather than statistical or numerical terms if the Secretary of State so wishes.

I discussed on Report the reasons why we think that this clarification is important. We believe that a requirement to set out the progress required in statistical terms is equivalent to a requirement for interim targets on child poverty towards the 2020 target. Interim targets incentivise the short-term, income-transfer approach that we have seen in the past. That approach has not worked and completely fails to address the underlying problems. This can lead therefore to small amounts of money being given to families just to lift them over the poverty line.

The Government remain committed to eradicating child poverty and improving social mobility. We do not believe, however, that the right way to achieve these aims is by using income transfers to move people above an arbitrary line, so we must focus on tackling the root causes of poverty and changing behaviour. In the long term, those with the lowest level of income can only improve their life chances by keeping pace with those at the top. This is why we must take long-term sustainable measures to improve skills, abilities and aspirations. An income-transfer approach does not work because it is unsustainable and does not deal with or address the underlying causes of long-term deprivation. We will continue to monitor progress through the annual publication of the Household Below Average Income Statistics, the beloved HBAI. However, we think it is very important to clarify that the law does not require the child poverty strategies to set out interim income targets. It is because of this that we cannot accept the amendment. By reintroducing the wording of the original Child Poverty Act, in effect it would remove the clarification that we introduced using the amendment to Section 9.

I emphasise that we remain fully committed to eradicating child poverty, and that amendment does not alter current government policy. We will continue to be required to produce a strategy every three years which sets out the measures that will be taken and the progress that needs to be achieved over the period. This amendment is unnecessary and unhelpful. The requirements it seeks to place on the Secretary of State already exist. All it will do is reintroduce lack of clarity regarding how progress is to be described, and I therefore urge the noble Lord to withdraw it.

[Lord McKenzie of Luton]

From what the noble Lord has just said, it seems that what the Government did on Report sought to change the import of what is set out in the Child Poverty Act. If it removes what the noble Lord thought might be the need to have interim targets along the way, surely that is a change, otherwise what is the clarification about? Part of the strategy is to hit some very clear targets by the end of 2020, and I presume the noble Lord is not seeking to change that requirement, but what is it about the current wording that has been changed? I am sorry that I am not being very clear on this, but the Minister has said that there is no change and it is all the same as before and this is just a clarification. However, I thought he said when explaining it that it obviated the prospect of having to put in interim targets when the strategy is developed along the way towards 2020. If that is the case and the requirement for those interim targets is removed, that is a change. It may be that that is what the Minister and the Government want, but it is a change. If it is not a change, can the Minister have another go at explaining why not?

[Lord Freud]

My Lords, what I hoped that I had explained, although I failed to do so adequately, was this. As currently written, the Act is somewhat ambiguous. We and, I imagine, the previous Government have always interpreted this as needing to describe the progress we are making in policy terms in a way that does not require interim targets because such targets, when set every year, become absolutely tyrannical. They are particularly tyrannical when you are trying to change people’s lives and behaviours in a fundamental way. If you are worrying about interim targets every year, your efforts are undermined. This is a clarification to make it crystal clear that our understanding of the Act, and to be honest what I think was the previous Government’s understanding of the Act—the noble Lord and I spent many happy hours going over every word of it, although I am still not sure that I understand the word “socioeconomic” in it, but let us put that to one side—is that we can progress in the way we think is best, which is pursuing fundamental change for people, without the tyranny of interim targets. The previous Government did not want them and we do not want them. We want to be able to describe our progress towards the main target. I hope that the noble Lord will agree that that is the desirable way to go with this.

It is not an easy thing to do. Dealing with child poverty is really tough. The noble Lord knows it and I know it, as do we all. Let us not mess about with it, but try to do the fundamentals, and this is what we need for that. We need to be absolutely clear that this approach will work.

[Lord McKenzie of Luton]

My Lords, it is a pity that this came up at the end of the Report stage and that we do not have another chance to review the record. I am minded not to press the matter this evening, but frankly I am not sure whether colleagues in another place or we in another situation might not wish to re-engage on the issue. The key issue along the way is what the Government will be prepared to commit to and how progress towards the 2020 objective is going to be measured. That, to my mind, is what is missing from what we have just heard from the Minister. However, I do not think it would be productive to test the opinion of the House on what is quite a narrow debate, so we must try to find another way of clarifying this. I accept the assurance given by the Minister. He has put it clearly on the record that this is not meant to change the law or the duty on the Government, and it is not meant to change the obligation that the Government have. On that basis, I will withdraw the amendment.

Amendment 14 withdrawn.

Schedule 1 : Universal credit: supplementary regulation-making powers

Amendment 15

Moved by

[Lord Freud]

15: Schedule 1, page 113, line 3, at end insert—
“Work-related requirements6A Regulations may provide that a claimant who—
(a) has a right to reside in the United Kingdom under the EU Treaties, and(b) would otherwise fall within section 19, 20 or 21,is to be treated as not falling within that section.”

[Lord Freud]

My Lords, we have brought forward this amendment to ensure that where we have an obligation under EU treaties to allow the free movement of workers, those who have a right to reside here under EU treaties, particularly as jobseekers, may be subject to the full work-related conditionality requirements of universal credit. This amendment enables us to make regulations so that EU migrants cannot fall into groups which are not subject to the work search and work availability requirements. We must meet the UK’s obligations under EU law while ensuring that, when people come here, they do not take inappropriate advantage of our benefit system. We must maintain protections against non-active migrants who travel for the purpose of accessing state support.

We have always maintained that non-active migrants who want to come to the UK should be self-sufficient, and EU law supports this. The amendment will allow us to make sure that jobseekers who exercise their EU treaty right to come to the UK are in fact searching and available for work, as is the case now. I beg to move.

[Lord McKenzie of Luton]

My Lords, we support the thrust of this amendment. Perhaps I may ask one question. We had a helpful briefing note from the Box which reads as follows: “This amendment therefore is designed through this regulation-making power to enable the Secretary of State, so far as possible within the unified structure of universal credit, to maintain the current position in relation to the obligation placed on EU jobseekers”. The phrase “so far as possible” seems to be a qualification on what the Government are seeking to achieve here, and I wonder if the Minister might just expand on what that qualification amounts to.

[Baroness Morgan of Drefelin]

While the Minister is being helpful, perhaps I may seek the indulgence of the House for just a moment. I want to apologise for not having been able to get in to move my amendment because of the crowds leaving the Chamber after the EU Council Statement, but I want to thank the Minister for the telephone conversation I had with him earlier today when he agreed to work with me and with others on monitoring very closely the changes to the work capability assessment for cancer patients.

18:30

[Lord German]

I do not know whether this is the right place in the debate in which to do it because it is the first time that I have had the opportunity, but I want to place on record our thanks to the Bill team and my noble friend the Minister for the way in which they have handled the Bill all the way through. The way in which access to civil servants has been granted and the openness with which the Minister has provided information has been a revelation. I am most grateful, as I am sure are my colleagues on these Benches.

[Lord Wigley]

My Lords, since this opportunity is being taken to say thank you, perhaps I may from our Benches—I am sure that others will want to do likewise—thank the Minister and the noble Lord, Lord De Mauley, for the courteous and happy way in which they have handled the Bill. The Minister has always had a smile on his face despite the fact that there have been occasions when I am sure he felt otherwise. He has always been eager and helpful in responding to inquiries. There is a danger that he will become known in the House as “the latter-day Lord Newton”; in other words, the person who the disability lobby knows is really on its side but whose hands are sometimes tied. There can be worse tributes than that. We are very grateful for all the time and consideration that he has given during the past few weeks.

[Lord McKenzie of Luton]

Before the Minister answers the question that I posed earlier, perhaps I may take the opportunity to add our thanks. The Minister’s enthusiasm for universal credit and his commitment to evidence-based policy have been evident to all of us. He has borne a very heavy load in bringing the Bill through your Lordships' House and has done so, as has just been said, with good humour throughout our proceedings. The fact that noble Lords have sought to beg to differ on a number of provisions does not lessen our respect for him or for the determination that he brings to his role. He has of course been ably supported by the noble Lord, Lord De Mauley, and other colleagues. Our thanks go also to the Bill team for their extensive briefings and provision of information, and the helpful way in which they have engaged. I have seen the operation of a Bill team as a Minister and am aware that we see just part of a huge operation which underpins the calm presence that we see in the Box. The scope, the size and the innovative context of the Bill will have added to this challenge. Of course, I thank my team on these Benches for their expertise, passion and support. As I have said previously, I would not have wished to face such a battery when I was a Minister.

The important changes that we have made to the Bill do not belong to us; they are the result of the voices, votes, knowledge, experience and compassion on all Benches in your Lordships' House. I have no doubt that what we send back to the other place is a much better Bill but also one which does not fundamentally undermine universal credit. It remains to be seen what returns in due course. Thus far, I have no doubt that your Lordships' House has done its job in holding the Government to account. What we are dealing with in this Bill touches the lives of millions, including many of the most disadvantaged and vulnerable in our country. Our duty to them is not yet concluded.

[Lord Freud]

My Lords, before I say a few words of my own, I have to admit that the very last question from the noble Lord, Lord McKenzie, was a tribute to him. It is quite difficult to answer; it is in a tricky area. We are pretty confident that we can maintain the position whereby it is only EU jobseekers whom we have to support and not others. As the noble Lord will know, we are moving from providing particular support in JSA to providing general support. That is where the protection is. We are hopeful that, by and large, we can maintain it, but there may be some shadowing of that position.

It is a shame that the crowds trying to get out of our deliberations earlier on slowed down the noble Baroness, Lady Morgan. I can clarify that we had a useful conversation on monitoring cancer patients and I said that the statistics which come out quarterly would become national statistics. I committed to look at what they would show in order to assess how the face-to-face process and other issues were dealt with. She very kindly said that she would help me with that after the consultation. Although we did not debate it, the position is now sufficiently clear on the record.

I do not think that we have seen the last of this Bill, but we have passed a significant point at Third Reading. Perhaps I may use this opportunity to place on record my thanks to noble Lords right around the House for the way in which they have been so constructive, have thought through the issues and been absolutely on the point. I have seen in other Bills a lot of grabbing of the wrong end of the stick and waving it about vigorously, but we have not had that here. Our deliberations have been outstanding. I shall not name all the contributors because it would take all evening—and I would forget someone, which would be invidious.

I was going to say how pleased I was that we had got universal credit through unchanged, but I cannot say that any more. Had it not been for today, we would have had it through. I know that what we are trying to do with universal credit has been understood. The complexity of universal credit is such that, if noble Lords had not appreciated it, it could have been cut to shreds and rendered completely unworkable and basically a disaster. I really appreciate the fact that it has not happened, except on one occasion.

[Baroness Hollis of Heigham]

It has not happened.

[Lord Freud]

This is my speech.

I need to thank my noble friend Lady Garden for her support on the Front Bench, and my noble friend Lord De Mauley for his proficiency in covering a number of clauses. He drew one of the short straws, but he did it manfully.

I need to thank also the Bill team—a few of them are in the Box—who have been absolutely stunning in supporting me all the way through. As some of your Lordships have said, they have supported a lot of noble Lords in this process. The access and one-to-one contact that they offered were probably why the wrong end of the stick was not waggled quite so vigorously as it could have been. I hope that the whole House will join me in thanking them for their phenomenal support.

Amendment 15 agreed.

Bill passed and returned to the Commons with amendments.

Protection of Freedoms Bill

Tuesday 31st January 2012 Lords Chamber

Report

18:40

Clause 1 : Destruction of fingerprints and DNA profiles

Amendment 1

Moved by

[Baroness Hamwee]

1: Clause 1, page 2, line 6, after “police” insert—
“(iii) taken from a person detained under section 136 of the Mental Health Act 1983,”

[Baroness Hamwee]

My Lords, in moving Amendment 1, I will speak also to Amendment 2. Amendment 3 is also in this group and is in the name of the noble Lord, Lord Campbell-Savours. This amendment refers to Section 136 of the Mental Health Act 1983, which allows for the detention, in a place of safety, of someone found in a public place apparently,

“suffering from mental disorder and … in immediate need of care and control”.

Black Mental Health UK, together with Big Brother Watch and GeneWatch UK, brought concerns to me and other noble Lords about the taking of DNA samples and fingerprints in the circumstances covered by Section 136 that I have just described. The people concerned have been detained in a place of safety; they have not been arrested. They are at a point of crisis in their lives, and the organisations pointed out that the intimate process of taking DNA samples might cause further trauma to an individual who is at his most vulnerable, as I am sure your Lordships will understand.

They wrote to the Minister who is the policy lead on DNA, who replied, referring to the Police and Criminal Evidence Act and explaining that an individual detained under Section 136 is not arrested and so there is no power for DNA samples or fingerprints to be taken; and, if they are taken, that is unlawful. The new Section 63D(2)(a), which would be introduced by Clause 1 of this Bill, requires their destruction. My initial reading of the letter from Black Mental Health UK and the reply from the Minister made me think that the concern was about the impact of taking the sample, and that what was needed was a more careful observation of the restriction—in other words, that samples should not be taken when it is unlawful, and that this might be emphasised in the relevant code of practice or guidance.

However, when I looked at the proposed new Section 63D(1), I wondered whether this situation actually fell within it, and therefore within Section 63D(2), which requires destruction of the samples. Looking at the provisions at the top of page 2, we are talking here about fingerprints or DNA,

“taken from a person under any power conferred by this Part of this Act”—

PACE—

“or … taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence”.

There is no power to take samples or fingerprints and nor are they taken with consent. Hence, my amendments would bring within Section 63D(1) samples and fingerprints taken from a person who is detained under this section of the Mental Health Act.

Earlier in the week, at about the same time that the Minister replied to Black Mental Health UK, I saw that there was a Written Answer to two Questions, I think, from the noble Lord, Lord Ouseley. I have been in touch with him today. He wishes he could be here but is not very well today, and so I am begging his support in absentia. He knows I am going to do that and he has not asked me not to—indeed, he says that he supports these amendments. I beg to move.

18:45

[Lord Campbell-Savours]

My Lords, I speak to Amendment 3, which stands in my name. Perhaps at this stage I can apologise to the House for not being present during proceedings in Committee, as I was back and forth to and from hospital over a six-week period and was therefore unable to attend apart from a brief debate when DNA was being discussed. I set out my position on two amendments—including the one I will be moving later—on 29 November, when I made clear I was in favour of a voluntary national DNA database. I also apologise because Amendment 3, which I wrote in November, is slightly in error. Instead of it beginning with the words,

“or if the person from whom the DNA sample or fingerprint was taken”,

it should actually have read “and only”. That is my fault.

My amendment would require the authorities to obtain the permission of the DNA sample donor prior to the removal of his or her profile from the database, but does not totally compromise the Government’s intention to introduce their proposed changes. At first glimpse, the House might find it difficult to imagine circumstances in which a donor would resist removal of his or her profile. Furthermore, the House might wish to consider in what circumstances creating this new obstacle might benefit the state.

So why would a donor resist removal, and in what circumstances? A donor may wish to ensure that he or she is ruled out of a police inquiry through a simple DNA data mismatch during an investigation. The donor might feel that by allowing the retention of their profile, they were freeing themselves of suspicion during the police investigation. They may well have personal or particular family reasons for doing so. One has to place oneself in the mind of a person who has been accused of a crime and wants to be free of a potential accusation, or even show that he or she is not involved in criminal activity or is even going straight. It might help that person’s resolve. Some former criminals, even those involved in minor offences, feel that they are constantly under suspicion. This proposal is a psychological aid to rehabilitation.

So what possible benefits could there be to the state? I will not pray in aid the general arguments for the retention of DNA in the fight against crime. That is all well documented. However, there is a reasonable discussion to be had about whether, in the absence of DNA information following its removal, at least some residual information should be held on former donors. It was argued repeatedly in Committee that the proposed retention period was too short in the case of serious cases of rape and other crimes of violence. The Government’s response was the two-year possible extension period.

However, there are surely circumstances in which the state, while not retaining the DNA information, has an interest in at least knowing the whereabouts of a person who has previously been charged with a serious criminal offence. Let us not forget that “beyond reasonable doubt” is a high hurdle. Criminals who are successfully prosecuted often drop off the radar, as do those who are not successfully prosecuted. They move on in the process of seeking to cover their tracks. If DNA information is to be lost, the police should at least have the opportunity of retaining some point of contact, or knowledge of the whereabouts of former donors. Some who have been charged with offences will either surface at a contact address to request removal of the DNA data, to avoid detection in the future, or will steer clear of requesting removal, so as to avoid revealing their whereabouts. This may well happen in the case of people who have moved abroad, outside of what they believe to be UK jurisdiction. However, there will of course be those who have surfaced to request the removal of DNA data as a matter of principle. I fully recognise that these are complicated arguments; I suppose that they relate more to criminal psychology than to any empirical evidence that I am able to offer. But I merely ask the House to consider this as a proposition, perhaps for future legislation, since it is a little late at this stage

[The Minister of State, Home Office (Lord Henley)]

My Lords, I hope that I can deal with these two cases relatively briefly. My noble friend Lady Hamwee has brought before the House again the issue of those detained by the police and taken to a police station as a place of safety under Section 136 of the Mental Health Act. My noble friend outlined what that did, but it might help if I briefly outline my understanding.

If a person in a public place appears to be suffering from a mental disorder and in need of immediate care or control, Section 136 of the Mental Health Act allows a police officer to remove that person to a place of safety if the officer thinks it necessary to do so in the interests of that person’s protection or that of other people. I should make it clear that persons detained under Section 136 of the Mental Health Act—my noble friend emphasised this—are not arrested. That is a very important point that we all have to remember. It is an entirely separate regime, focused on the protection of the detained individual rather than the wider public. The powers to take DNA and fingerprints in Part 5 of the Police and Criminal Evidence Act 1984 apply only to those individuals arrested for a recordable offence. If a person was arrested for a non-recordable offence, such as speeding, or if they were not arrested at all but detained under the provisions that we are talking about, as is the case under Section 136, the powers simply would not apply.

If the police were to take biometrics in these circumstances, it would be not only an error on the part of the police but in fact unlawful. Under new Section 63D(2)(a) of the Police and Criminal Evidence Act, as inserted by Clause 1 of this Bill, if it should get on the statute book, all police officers would be under an obligation to delete material taken in this way. Therefore, I can say to my noble friend that Amendments 1 and 2 are unnecessary in that respect. She shakes her head, but I can assure her that, because the person had not been arrested, that would be the case. Taking biometrics from a person detained under Section 136 of the Mental Health Act is already unlawful.

The police are guided in the way that they take DNA and fingerprints by the PACE code of practice D, which deals with issues of identification of persons by police officers more generally. We will need to update code D in the light of the passage of this Bill and before it comes into force. I am happy to say to the House that we will include in that revision of the code a paragraph to make it quite clear that taking biometrics from those detained under Section 136 of the Mental Health Act is unlawful.

[The Earl of Erroll]

Just to clarify, if the police inadvertently, even despite the new code, were to take such a sample unlawfully, presumably it would just be destroyed once they realised that they had made the mistake. There would not have to be any other rigmarole.

[Lord Henley]

My understanding is that it would be unlawful and that therefore they would destroy what they had taken. I can give that assurance to the noble Earl.

[Lord Harris of Haringey]

To clarify further, presumably part of the difficulty here is that this is an inadvertent error by the police, because they have taken somebody under Section 136 to a place of safety which in this instance has turned out to be a cell in a police station. Is not the real problem here, and the reason why, presumably, custody officers have then made this mistake, that there is an inadequate supply of places of safety in more appropriate accommodation? That is a fundamental issue. If the Government were to address that, the chance of this arising would become far less.

[Lord Henley]

If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.

I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.

I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,

“any other case,”—

in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,

“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.

We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.

I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.

[Baroness Hamwee]

My Lords, I do not think that we will have an opportunity to come back to mine. Of course, I am glad that the Minister and I are focused on the same outcome—the destruction of the material. My concern is that the answer to the Parliamentary Questions and the letter from the Minister rely on the new Section 63D(2) of PACE. However, as I had hoped I had explained, I do not think that it applies. The new section starts “This section applies to” and then in paragraphs (a) and (b) sets out what it applies to. My concern is that material taken when the person is not arrested, as the Minister has made clear, and has not given consent would not fall within this and therefore the provision for destruction in new Section 63D(2) would not apply.

I am glad to hear what the Minister says about the code and I am of course not going to press the amendment today. But my concern was that, by relying on a section that in my view does not apply—I do not think that we have quite bottomed it out—there might be resistance to destruction, which the Minister has said that the code will make quite clear is required. Although not within the context of the Bill, perhaps this is something that he and I might have a further word on outside the Chamber because we are clearly aiming at exactly the same outcome. Having said that, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 and 3 not moved.

Clause 3 : Persons arrested for or charged with a qualifying offence

19:00

Amendment 4

Moved by

[Baroness Royall of Blaisdon]

4: Clause 40, page 18, line 40, leave out “work has such meaning as may be prescribed” and insert ““better paid work” and “more paid work” shall have such meaning as may be prescribed in regulations subject to the affirmative resolution procedure”

[Baroness Royall of Blaisdon]

My Lords, Amendment 4 would seek to instate a more proportionate limit of six years for the retention of DNA and fingerprint data for those arrested and/or charged with a qualifying offence such as rape or serious assault. We return to the difficult balance to be struck between protecting people's freedom from police and government interference and protecting their freedom not to become victims of interference or violence from criminals or terrorists. As was mentioned in our debate in Committee, there is no more important series of cases involving DNA evidence than serious sexual crimes, rape and other offences against women, which cause huge anxiety, shame and sorrow for the victims. That fact is one of the major catalysts for the amendments before us.

The six-year limit proposed by my Government was based on Home Office analysis and reflected a proportionate response to the European Court of Human Rights ruling that the blanket retention of DNA violated Article 8 of the European Convention on Human Rights. In Committee I cited the 23,000 criminals a year who go on to commit further offences, and who will not be covered by the Government's proposed three-year retention limit. I was asked by the noble Lord, Lord Phillips of Sudbury, who is not in his place, whether that figure included minor offences. I confirm that it does, but also that each year 6,000 of those individuals will go on to commit serious crimes including rape and other sexual offences, murder and manslaughter. This analysis comes from the House of Commons Library and from Home Office research given to the Minister, Mr James Brokenshire, in July 2010. I think that the research was buried for some time.

As noble Lords will know, the three-year limit for the retention of DNA comes from the Scottish model, which was based on no real analysis of the risk to public security. The coalition Government made a commitment to the three-year limit based on no new evidence, simply a judgment that this was the appropriate balance between privacy and public safety. The Opposition fundamentally disagree with this judgment. When it comes to offences such as rape and serious assault, we believe that the balance should be in favour of protecting the public and that a more cautious, evidence-based limit should be set.

I was particularly struck by the speech in Committee of the noble Baroness, Lady O'Neill of Bengarve, about the reality of what is stored, and how it is stored, on the National DNA Database, because this reaches the heart of the issue about the invasion of privacy. She said:

“The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as ‘junk DNA’, which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone's face”.—[Official Report, 29/11/11; col. 145.]

I recognise that how far the state should keep sensitive information on its citizens is a sensitive and highly important issue. However, I believe that the noble Baroness’s detailed explanation about the data on individuals and how those data are actually held removes many of the core concerns voiced about the retention of biometric information. If more citizens understood that they would be willing to cede this tiny amount of personal privacy in exchange for the arrest and conviction of murderers or rapists.

The Government have recognised that there will be situations when there is a clear need to retain an individual's DNA beyond the three-year limit. That is why new Section 63F, “Retention of section 63D material: persons arrested for or charged with a qualifying offence”, contains a provision for allowing police officers to apply for a two-year extension to the limit. However, we have serious concerns about transferring the burden of responsibility for these decisions to the police. It would seem that the Government are abdicating responsibility for the adverse consequences that may result from their decision to set a limit of three years.

We know that in practice such a safeguard does not work. In evidence given to the Public Bill Committee, ACPO stated that the Scottish system on which this is based has not led to a single application for an extension,

“because there are 6 million records on the national DNA database. We have always argued that it is impossible to create a regime of individual intervention for a database of 6 million … In effect, the Scottish model has to rely on a judgment being made against an individual profile when it reaches three years”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 9.]

More fundamentally, the thrust of these provisions is to pass the burden of responsibility for these decisions over to the police. The Government, as I said, are abdicating responsibility for the impact on public safety that may result from their decision to limit the retention period to three years, by suggesting that it is up to the police to decide whether the three-year limit or a five-year limit is more appropriate for each individual who is on the DNA database for a serious offence.

Passing that responsibility on to the police would be wrong on any occasion but it is wholly wrong to do so in these straitened times when intense burdens are placed on the police as a consequence of the cuts. The Government are taking a huge and very risky step in the Bill by reducing to three years the limit for which DNA and fingerprint data are retained for those arrested and/or charged with a qualifying offence such as rape or serious assault. Any such move should—indeed, must—be accompanied by robust evidence, but I do not believe that the evidence is there. I ask the Minister to think again.

[Lord Lester of Herne Hill]

My Lords, I wonder whether I might speak briefly as a member of the Joint Committee on Human Rights, because Members of the House will have the benefit of our report on the Bill, which is in the Printed Paper Office. In that report the committee—which is of course all-party, and beyond party—expressed the view that the scheme in the Bill is more proportionate and more likely than the previous regime under the Crime and Security Act 2010 to pass muster with the Marper judgment of the European Court of Human Rights.

I am not going to bore the House by referring in detail to what the report says, as it explains the issues very briefly and clearly. However, one matter that we expressed concern about, which I think is relevant, is that the committee said that it could not,

“reach a firm conclusion on the proportionality of these measures”,

without fuller information, including statistics on the operation of the National DNA Database, and asked the Government,

“to collect better records on the contribution made to the prevention and detection of crime by the retention and use of biometric material in the future”.

Paragraph 8 of the report states that,

“the measures in the Bill are likely to be a significant improvement on the measures in the Crime and Security Act 2010”.

As for the three-year versus the six-year period, with a renewal of two years, the committee commended and welcomed that as a,

“decision that a narrower approach to retention is appropriate”—

and so on.

The noble Baroness makes the point that Parliament should set a six-year term rather than having a three-year term renewed on application under the Bill. It seems no more rational or sensible to adopt a six-year period than to have a discretionary ability to increase for a further two years for a cause, as experience shows, but it is a matter of judgment about the better approach that one adopts. I say simply that the Government have the support of the committee itself in its report.

[Lord Hughes of Woodside]

My Lords, I support my noble friend Lady Royall. I do so even though I am not entirely in agreement with her, simply because in my view six years is too short. I think that we should go further. This is not the time or the place to argue the whole case, but I want to place on record my total opposition to those who say, on libertarian grounds, that we should not keep DNA because it affects people’s privacy. I think of the people over the years who have been caught because DNA has been kept for 10, 15 or 20 years, sometimes not for a specific offence but because it was standard practice to take a DNA profile. I regret very much that we are going to the extent of saying that we should keep DNA only for three years, with all the qualifications that there are around that.

Technology has improved over the years, not least in the storage of DNA samples. We have seen a case recently, which is probably sub judice because it is now in appeal, where a tiny fleck of blood was found on someone’s shirt but that was enough to lead to a conviction. As I say, one defendant is appealing so I shall say no more on that.

With that one reservation, I give my noble friend my full support on this. If it comes to a vote then I shall certainly vote with her, but I think that even six years is too short. We are going far too far on the basis that people’s privacy is more important than the conviction of someone for a serious offence.

[Lord Dear]

My Lords, I have a good deal of sympathy with the view that the noble Lord, Lord Hughes of Woodside, has just expressed; it is a view that one hears frequently when talking to, as it were, the man on the Clapham omnibus. I rise neither to support nor to oppose the amendment at this stage. I have not checked with ACPO to see whether it would prefer a lift from three years to six, but in a straw poll it would probably agree that six years would be a help. However, it is incumbent on me to point out that ACPO has already expressed the view that it is comfortable with three years, following the Scottish model, and the ability to go further.

I wait to hear what the Minister says, but the nub of this is the question of balance and proportionality. It is necessary to follow to a large extent the judgment in Marper, which we all remember and which started this debate in the first place. What the noble Lord, Lord Lester of Herne Hill, has said is very pertinent; I drift very much towards his point of view. Still, I would like to hear what the Minister says, particularly on the question of balance, proportionality and how that affects the Marper judgment.

[Lord Harris of Haringey]

My Lords, on the same point about the balance of proportionality, I am assuming that this clause is based on a detailed and careful analysis of the evidence, so perhaps the Minister could share with the House the numbers of people who are affected in terms of their DNA samples being removed and destroyed. Over the past few years, how many individuals whose DNA would now have been removed from the database would not have been brought before the court for offences that have either subsequently come to light or where their DNA has subsequently been matched? It is incumbent on the department to place this evidence before us. That would deal with the concerns raised by the Joint Committee on Human Rights.

If in fact there is no evidence and a judgment has simply been made that three years is better than for ever, but there is no reason why it should be three years instead of five, six, seven or two, that is not a sound basis for making an extremely important decision, not least for the sanity of the victims of serious crime where the perpetrator might otherwise be convicted. It is a very unwise position for this House to be making that judgment without an understanding of the evidence.

19:15

The proposal to ask the police to make a recommendation to extend for a further two years is a strange one. I can conceive that the Government do not particularly want to get themselves on this hook, but if the expectation is that the police will simply refer all such cases and say that they should be extended by two years to five, then that would be a way of doing it. No doubt that would salve a few people’s consciences and mean that fewer would escape conviction than would otherwise be the case.

I cannot believe that that is the intention of the legislation, in which case what are the arguments to be used in determining whether to make that extension from three years to five, and who is to make those judgments? Is it simply going to be on the say-so of an individual police officer? How will that be subject to challenge? Say that an individual who is arrested but not charged is told, “Your DNA is being held for three years”, but then after three years the police come forward and say, “We are seeking an extension of this period to five years”. Is that not a statement by the police that, “We believed you were guilty all along,”? and is there not stigma associated with that? Surely that is not a proper way of managing these things. Perhaps we could have a hard and fast rule that is based on hard evidence.

[Lord Campbell-Savours]

My Lords, I do not want to detain the House longer than a few moments. I reiterate what I said in my brief intervention when we last discussed this matter. I simply cannot understand how we could allow the complete disconnect on this issue between the Government and what people think outside the House. When I talk to my colleagues and friends outside politics about this issue, there is universal support for our position. I know one person who is in favour of the Government’s position. Many of my friends who are Conservative supporters just do not believe that the Government are taking this action. I cannot understand how we allow ourselves to slip into a position where this disconnect can develop. Even during the course of this debate, why are Government-supporting Peers, who know what their own supporters are saying on this issue, not objecting more or even privately making representations to the Government on the need to avoid going down this route? What happens when cases begin to surface, as inevitably they will, of people who have committed crimes who could have been picked up in the event that their DNA had been retained?

The Joint Committee on Human rights has obviously expressed a reservation, which I perfectly understand. Effectively it is saying, as my noble friend did, “Where is the evidence?”. I do not believe that there is any evidence that is worthy of this kind of debate. The Government are making a major mistake in proceeding on this basis and, as I say, they are aggravating the disconnect between the people and Parliament.

[Lord Lester of Herne Hill]

Before the noble Lord sits down, he wants evidence, but would he agree with me that what the public may or may not think on the matter is not evidence—it is evidence only of public opinion? We should be careful in deciding questions of rights and freedoms in adopting what might be called a populist approach.

[Lord Campbell-Savours]

The public’s perception of freedom in this debate is that they will be free of crime, or at least freer, in the event that more DNA was to be retained. That is the general attitude of the public as I understand it. They want freedom, but they believe that freedom comes with the retention of DNA.

[Baroness Hamwee]

The noble Baroness has referred to the figures that she gave us at the previous stage. She said that 23,000 criminals a year would no longer be on the database who could commit 6,000 further crimes. She has answered the point of my noble friend Lord Phillips and confirmed that these include minor offences. Rereading Hansard, I was not clear whether the 23,000 were those within years four to six, because some of the cases mentioned in the debate related to crimes where there had been more than a six-year period.

As noble Lords said on the previous occasion we discussed this matter, it is not entirely black and white. As we discussed in Committee, if one asked a random group of the public about this, most would want a longer period of retention. That is possibly correlated with those who watch entertaining but unrealistic television dramas; I know that I am affected by these things. We all know that if you asked the same group of people about capital punishment, you would probably get a very hard-line answer, which is why most of us try to avoid asking that question.

My noble friend Lord Phillips said that though we would all agree that a society with a full range of surveillance would be a different society, few of us would be able to articulate why that was so. I have to say that I am among the less articulate on this. I do not think anyone could say that what the Government have proposed is in any way a casual approach to retention or one which completely reverses the current approach. Indeed, it is a pity that what is proposed in the Bill is so hedged about with conditions that this is not so very different a piece of legislation. I agree that, of course, we should not be casual about crime and the prevention or detection of crime. Similarly, we should not be so cautious that we are casual about privacy, our culture and the intervention of the state in our privacy. The noble Baroness said in Committee that,

“there is a fine line between the preservation of … freedom and privacy”,—[Official Report, 29/11/11; col. 146.]

on the one hand and the delivery of justice and the protection of citizens on the other. I also acknowledge the fineness of that line but I think that I am on the other side of it from her.

[Lord Henley]

My Lords, as always, I am very grateful to my noble friend Lord Lester of Herne Hill for his assistance and advice in relation to what the Joint Committee on Human Rights feels about this issue. I am also grateful to my noble friend Lady Hamwee for what she had to say. Certainly, we will do what we can to provide better evidence of the use of DNA in convicting criminals as and when we can. However, I refer the noble Lords, Lord Campbell-Savours and Lord Hughes of Woodside, and possibly even the noble Lord, Lord Harris of Haringey, to the figures. These are some of the figures that we have; obviously, more will become available. Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember as we look at this amendment.

I also give an assurance to the noble Lord, Lord Hughes of Woodside, who was worried that material taken from crime scenes would be lost. That is not the case. Material taken from crime scenes will still be taken; we are talking about material that is taken from individuals, whether criminals or not. That is a very different matter. My noble friend Lady Hamwee addressed a point of disagreement about whose DNA you should keep and for how long. We know that the noble Lord, Lord Campbell-Savours, feels that there should be a national database containing everyone’s data. He would like to start with a voluntary database on which we can all put our DNA. We will discuss that when we reach his amendment. That might be hunky-dory and all that but it is not what we want, nor do we think that we should pursue a compulsory line in that regard.

I have explained what evidence we have. That is something we will look at but I also think we ought to look at other matters which influence this decision. The first thing to point out to the noble Baroness, Lady Royall, is that they would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model. She says that that model was agreed without any analysis whatever. I have given some figures and we will provide some more in due course but we will also look at the remarks of Mr Keith Vaz, chairman of the Home Affairs Select Committee, at Committee stage on this Bill in another place. We will also look at what the ECHR had to say with regard to the Marper case referred to by the noble Lord, Lord Dear. I was very grateful to him for his intervention, particularly as he stressed the important point of this being a question of balance. My noble friend Lady Hamwee also stressed that point.

I believe that the party opposite is persisting in its approach to keep the DNA and fingerprints of innocent people for many years, no matter how little evidence was ever uncovered, and to keep huge numbers of individuals’ DNA and fingerprints on the national databases just in case they go on to commit crime in the future. That is not something with which we can agree. The party opposite pays scant regard to the judgment of the European Court of Human Rights in the S and Marper case, which noted with approval the system which has been in place in Scotland for some years. I remind your Lordships that the Scottish system, seemingly endorsed by the European court and on which we have modelled the proposals in the Bill before us today, was put in place by the Police, Public Order and Criminal Justice (Scotland) Act 2006, which was presented to the Scottish Parliament by the then Labour Justice Minister, Cathy Jamieson. I do not think that the Labour Party is in power in Scotland at the moment.

Noble Lords opposite contend that our proposals are in some way a charter for dangerous criminals such as rapists which will allow dangerous individuals to roam the streets, committing serious offences with no way of tracking them down. The contention that every individual suspected of rape or any other serious offence will instantly come off the database as a result of these proposals is just not true. As we have discussed previously and at some length, those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. The police will do that and that is similar to what is happening in Scotland. Those arrested for a qualifying offence but not charged—oh! I was wondering whether the noble Lord wished to intervene but he is obviously addressing his Front Bench.

[Lord Campbell-Savours]

If I recall correctly, my noble friend on the Front Bench said that there had been no extensions whatever in Scotland and no use of the two-year extension. Is that true? If it is true, on what basis can it be argued that it is going to happen here?

[Lord Henley]

I am saying that it is available to the police should that be necessary. That is the important point to get over to the noble Lord. I do not know what the figures are for Scotland. I am not responsible for Scotland. It is another Administration in charge of their—

[Lord Campbell-Savours]

In other words, the Government are proposing an extension of two years for England and Wales. That system already exists in Scotland but the Government do not even know what has happened in Scotland in terms of the use of the two years. Is that correct?

[Lord Henley]

My Lords, that provision will be available here; it is available there. That is the important point. The police will have the ability to apply to the courts. Those arrested for a qualifying offence but not charged, where the victim is vulnerable, will also have their DNA held for three years, subject to the approval of the new independent commissioner. The noble Lord may not like that but that is the case.

[Lord Harris of Haringey]

The Minister said that an application, which has not, or may not have been exercised in Scotland, could be made when the police consider it necessary. Could he define what he thinks would be necessary under such circumstances?

19:30

[Lord Henley]

I noticed the intervention made by the noble Lord earlier on that point. It would be for the police to decide whether they consider it necessary. I would not want to go any further than that at this stage. They will have to do that. These are matters that will be subject to review by the independent commissioner, which is another safeguard. I know that the noble Lord is not very keen on such safeguards, but I think they are very important.

Across the entire coalition Government we took the view, during the passage of the Crime and Security Bill and in advanced proposals on this Bill, that the correct approach is to ensure that those convicted in the past of serious offences have their DNA added to the database, while those arrested for, but not convicted of, more minor offences should not have their biometrics held beyond the end of the investigation. That is why we encouraged the police to complete Operation Sheen, which the noble Lord might have come across, which identified more than 300 subjects in prison custody who had been convicted of murder, manslaughter or any sex offence but who did not appear to have had their DNA profile recorded on the national database. That operation has been completed recently and has resulted in an additional 376 such individuals having their DNA taken and uploaded on to the database.

Having completed that work, using the provisions of the Crime and Security Act which were agreed in the final days of the previous Government, the police service has embarked on a further operation, Operation Nutmeg, which seeks to chase and sample those with similar convictions who are now in the community. As my right honourable friend the Home Secretary said at Third Reading of this Bill in the House of Commons:

“In June last year, we started a programme to identify individuals in the community who have previously been convicted of either a sexual offence or homicide, and whom the last Government failed to place on the DNA database. That process has so far identified more than 13,000 people whose identities have been passed to local police forces, and we are now working with the police to find the individuals and obtain samples”.—[Official Report, Commons, 11/10/11; col. 282.]

I believe that that sets out why we are doing this and why we are getting it right. I also believe the analysis which has been looked at by many independent experts who have considered it closely and, as my right honourable friend the Minister for crime and security said in the House of Commons Public Bill Committee,

“the Information Commissioner states that he ‘does not consider that the evidence presented’”—

that is, the evidence presented by the previous Government—

‘“supports a general period of anything like six years’”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 29/3/2011; col. 212.]

I turn finally to the remarks of the chairman of the Home Affairs Committee as I think they are apposite and they are remarks on which the noble Baroness might wish to reflect. In his contribution at the Report stage of the Crime and Security Bill in the House of Commons, the right honourable Member said,

“There were differences among those of us on the Select Committee on how long the period should be, but we came to the conclusion”—

this is again to stress the balance—

“that a three-year period probably strikes the right balance. We said that the period should not be less than three years—although it could be longer—but that three years was a reasonable length of time”.

The right honourable gentleman went on to say that on the Select Committee,

“there was a consensus that holding the data for six years was too long”.—[Official Report, Commons, 8/3/10; col. 48.]

Again I go back to what I said at previous stages of the Bill, that these are questions of balance. We think that we have the balance right; the European Court of Human Rights seems to think that we are getting the balance right; and the chairman of the Home Affairs Committee thinks that that is the case. Three years with the possibility of an extension seems to me to be about right and we think that six years is too long. I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to all noble Lords who have participated in this brief debate and for the information provided by the Minister. I say to the noble Lord, Lord Lester, that I have huge respect for the work of the Joint Committee on Human Rights but, on this occasion, I do not agree with its conclusions wholeheartedly. I noticed that other noble Lords have noted, as the noble Lord said himself, that the Committee was asking for better recording in future and for more evidence, in effect. It has become apparent during the debate that the coalition Government are now moving towards three years but are saying that, although they want three years, in some cases five years is more appropriate. They are, as many noble Lords would agree, putting that burden on the police.

In my earlier speech, I mentioned that ACPO had said that not one single application for an extension had been made in Scotland. That is very relevant to our deliberations this evening. I completely agree with all noble Lords who have spoken that this is a matter of balance and of which side of the line one comes down on. On these Benches, I think everyone comes down on the side of wishing to preserve people’s freedom to live, protected from crime, rather than having more protection for people’s privacy. We believe that the citizens of this country would prefer that. We are worried that in future—

[Lord Lester of Herne Hill]

Does the noble Baroness accept that this is not a “rather than” situation? She keeps using the phrase “rather than”. Of course we all want to protect ourselves against disorder and crime, but it is not a question of “rather than” but of balance. The Joint Committee on Human Rights has been looking at Marper and at the evidence and as an all-party and beyond-party committee it came to the conclusion that the balance was correct. Does the noble Baroness accept that it is a question of balance?

[Baroness Royall of Blaisdon]

I accept that it is a question of balance, as I have said on numerous occasions. However, I believe that it is also a question of “rather than”. We believe that, rather than people's privacy being the be-all and end-all in this argument, it is more important to retain DNA for a longer period. I see people nodding against me, if you see what I mean. I do not expect all noble Lords to agree with me but on this question of balance we come down on the protection of individuals rather than on the privacy of individuals. That is where we are.

I do not intend to move to a vote but I would be grateful if the noble Lord could come back to me with some more information which I may wish to pursue at Third Reading in relation to the three years and the five years. If this is a key plank within the arguments put forward by the Minister, as I believe it to be, it is very relevant that in Scotland it has not been used on a single occasion. I would like to know why the police in Scotland have not felt able to use this or have not felt it necessary to use it. I would be grateful if the Minister could bring back further information before Third Reading.

[Lord Henley]

My Lords, we are on Report so I intervene with some disquiet merely to say that I do not think that I can add anything to what I have said. I, and other colleagues on these Benches, have been saying that we have to get these things right for a matter of balance. This is also a matter that has been reflected on by the European Court of Human Rights and by our own Joint Committee on Human Rights. They think that three years is about right. We also feel that there should be the ability to extend that in certain cases. I leave it at that.

[Baroness Royall of Blaisdon]

My Lords, of course I recognise what the European Court of Human Rights said, but my Government, when they came to the view that the period should be six years, believed that it was compliant with the ruling of the ECHR. I was not suggesting that the Minister was going to agree with me; I was asking him to come back with further evidence of the situation in Scotland. There must be some facts and figures. The facts relating to Scotland that I have put before the House have been questioned, and I would like more facts about the situation in Scotland. I would like to know whether it is indeed the case that the police have not asked for an extension from three to five years.

[Baroness Hamwee]

My Lords, with the leave of the House, perhaps I may say to the noble Baroness that asking whether the police have or have not sought extensions is one matter, but asking why not seems to be asking the Minister to prove a negative. I thought, not just now but a few moments ago, she was asking the Minister to explain why not.

[Baroness Royall of Blaisdon]

My Lords, forgive me if I misled the House. I did not mean to ask why not; I wished to know whether or not the police had asked for an extension. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5 not moved.

Amendment 6

Moved by

[Baroness Stowell of Beeston]

6: Clause 3, page 5, line 26, leave out from “adult”” to end of line 27 and insert “means a person aged 18 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise,”

[Baroness Stowell of Beeston]

My Lords, I withdrew a similar amendment in Committee in order to take more time to consider carefully the concerns expressed by noble Lords. Having done so, I am confident about introducing this amendment.

Among other things, Clause 3 sets out the rules governing the retention of the DNA profile of a person arrested for a serious offence but not charged with that offence. In such cases, the police can apply to the biometrics commissioner to retain the DNA in certain circumstances, including where the alleged victim of the offence was a vulnerable adult. As my right honourable friend the Home Secretary said at Second Reading in another place:

“We must protect the most vulnerable in society, so when the victim of the alleged offence is under 18, vulnerable or in a close personal relationship with the arrested person the expectation is that the police will apply to the commissioner for retention”.—[Official Report, Commons, 1/3/11; col. 207.]

Amendment 6 seeks to replace the definition of “vulnerable adult” as used in this context.

Currently, Clause 3 defines a vulnerable adult by reference to Section 60(1) of the Safeguarding Vulnerable Groups Act 2006. However, as we will see when we consider Part 5, Clauses 65 and 66 seek to amend the definition of a vulnerable adult in the 2006 Act to mean any person over the age of 18 in receipt of a regulated activity—for example, health or personal care. The changes made by these clauses to the definitions of vulnerable adult and regulated activity put the emphasis on the activity and the person carrying out that activity. The Bill no longer attempts to define vulnerability or label a person as a vulnerable adult. As a result, the definition in the SVGA is not relevant in the context of Clause 3.

Perhaps I may explain further. Clause 3, which we are discussing, is about protecting victims of crime. Clauses 65 and 66 are about protecting those necessarily in receipt of personal care or who rely on the support or contact of others. They are two separate things. The amendment therefore draws on the definition in Section 5(6) of the Domestic Violence, Crime and Victims Act 2004, which defines a vulnerable adult as,

“a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise”.

The reason why the amendment inserts the definition in full in new Section 63G(10) of the Police and Criminal Evidence Act, rather than merely referring to the 2004 Act, is that our definition refers to persons aged 18 or over, given that the definitions in new Section 63G(2), as inserted by Clause 3, already include all those under the age of 18. For the purposes of protecting those who are truly vulnerable, we believe that this definition is far more apposite. It will cover and protect more people.

19:45

The noble Baroness, Lady Royall, asked in Committee for an assurance that the new definition will include victims in women’s refuges and sheltered housing. This is an important matter that I wanted to be sure of myself. I can say clearly that such victims will be covered by Clause 3, but not by this definition of a vulnerable adult. It may assist the House if I put on the record what I said when I wrote to her following Committee.

I can confirm that those individuals—more often than not women—who have had to seek refuge from an abusive partner would not be included in this definition, or indeed the definition currently in the Bill. They would, however, be caught in another limb of new Section 63G(2), as inserted by Clause 3, in that they would be “associated” with the suspect, as defined in Section 62 of the Family Law Act 1996. That definition includes those who are or have been spouses, partners, cohabitants and so on, or who parent the same child, among other similar categories. To be absolutely clear, such people are already covered by the Bill. I hope that that reassures the noble Baroness and any of your Lordships who may have had similar concerns after reading the record of the debate in Committee.

The noble Baroness, Lady Royall, also raised the issue of rape victims in general terms when we debated this amendment in Committee. Rape in general terms is not covered by the amendment as regards the definition of vulnerable adults, but I want to address the concerns raised in Committee. DNA, as we have already discussed, is of particular use in stranger-rape cases and is of minimal use in cases where the attacker is known to the victim. In these latter cases, the trial is more likely to turn on issues of consent than on the identification of the offender. In all rape cases, DNA recovered from the victim as evidence or crime scene material will continue to be retained indefinitely. Nothing whatever changes in that regard. In stranger-rape cases where a suspect is identified but it subsequently proves impossible to bring charges, the suspect’s DNA profile and fingerprints will be able to be retained, subject to the consent of the biometrics commissioner, in the following circumstances that are set out in the Bill: where the victim is under 18 as described in new Section 63G(2)(a) of PACE; where the victim is defined as a vulnerable adult, as I have described this evening; and where the victim or attacker is,

“associated with the person to whom the material relates”.

In addition, where an attack was of particular ferocity or there were other aggravating factors, the police could make an application to the biometrics commissioner under new Section 63G(3)(b), on the grounds that retention was necessary to assist in the prevention or detection of crime.

As my noble friend the Minister has said, the Bill strikes the right balance between protecting citizens from crime and affording the law-abiding their liberty. This amendment seeks to protect the most vulnerable in particular. We are importing a definition from another piece of criminal justice legislation dealing with the protection of the vulnerable that we believe is more suitable for the purposes of Clause 3 than the revised definition in the Safeguarding Vulnerable Groups Act.

I hope that I have been able to address the concerns raised previously by noble Lords and I commend the amendment to the House. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I am very grateful to the Minister for the explanation this evening and for the letter that she kindly sent me following Committee. These are complex issues. I hope that she will forgive me if I am asking questions that she has already answered. Essentially, to introduce a new definition of “vulnerable” complicates the issue in many ways. Although I hear what she says—that this definition is imported from another criminal justice Act—it is not the tried and tested definition of “vulnerable” and it would be far easier if people knew exactly where they stood.

I still have serious concerns about the appropriateness of the new definition. As the noble Baroness said in Committee, I disagreed with the restrictions that the Government placed on the retention of DNA data from those arrested for but not charged with a serious offence. That is a misleading distinction which has serious consequences for victims of crime with historically low charge rates, such as rape. As stated in the letter, the Government recognise that vulnerable members of society should be given special protection in such situations, and new Section 63G aims to provide for the retention of DNA data for those arrested for offences against victims deemed to be vulnerable adults.

At Second Reading in the Commons, the Home Secretary, the right honourable Theresa May, stated, on the conditions where new Section 63F(5) would apply:

“I would expect that application to be made in certain circumstances, such as when the victim has been vulnerable, which may mean there is very good evidence that the individual concerned has committed a crime but the victim is not able or not willing to come forward and see that case through”.—[Official Report, Commons, 1/3/11; col. 206.]

However, the Government’s proposed amendment to the definition of vulnerable adult recognises only those individuals who are subject to mental or physical impairment as being particularly vulnerable to problems in bringing forward a charge of providing evidence.

In particular, the new definition requires that an individual’s ability to protect himself or herself from violence, abuse or neglect is significantly impaired. The definition, particularly with the addition of the qualification “significantly”, adds a large element of discretion, leaving judgment of the vulnerability of the victim up to the discretion of the officer dealing with the case. I am concerned that such a definition is open to wide interpretation, which may mean that vulnerable adults are not given sufficient protection under the Bill.

An individual’s circumstances are a key indicator of their vulnerability, as is recognised by the definition used under Section 60(1) of the Safeguarding of Vulnerable Groups Act 2006, which lists a number of different circumstances in which an adult should be classed as vulnerable. The proposed new definition also neglects the fact that the type of offence will often determine the particular vulnerability of the individual and lead to problems which may account for the lack of any charge being made.

I note that the noble Baroness says that women who have been subjected to violence are covered under a different clause, although they are not covered by the definition of “vulnerable”. I am glad that that is the case, but it is complicated. They cannot read the Bill and see that they are covered as being vulnerable.

I will not press the amendment to a vote, but there are still questions to be answered. I do not expect the noble Baroness to answer me this evening, but if we could have further discussion about this to sort out some of my remaining concerns I would be extremely grateful.

[Baroness Stowell of Beeston]

On the change of definition of vulnerable adult, as I tried to explain in moving the amendment, it is important that we do not use the definition applied later in the Bill in the context of victims. If we did, we would be at risk of creating the opposite situation from what the noble Baroness wants. Later in the Bill, the definition of “vulnerable adult”, as amended, is intended to define people's vulnerability in terms of the activity in which a person may have to engage with them. As I said, whether it is personal care or whether someone is required to be in close proximity to someone else, we want to define vulnerability as far as whether someone should have the right to access the person.

In this part of the Bill, we are focusing on victims of crime. The fact that we are using a definition that already exists—it predates the definition that the Bill amends later—seems to me a simpler way forward. It is clear which people it is intended to protect. The definition states that it,

“means a person aged 18 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise”.

I understand the noble Baroness’s point about the use of “significantly” and whether or not the definition excludes some people whom she thinks might be captured by the other definition. I disagree. Under the other definition, which is dictated by the nature of the care that people receive, some people who are old may not be in receipt of any specific care that would define them as vulnerable. The fact that they are old would suggest that they are vulnerable in this context, so this definition would capture more people. Also, “otherwise”, at the end of the definition, means that there is discretion for the police in considering who is vulnerable. I would expect the new DNA strategy board to offer guidance to the police on how to consider the definition of vulnerability when they make their application to the biometrics commissioner.

One thing behind the noble Baroness’s concern, which I share, is that in the context of a crime such as rape, and violent crime against somebody, the impact of the crime might make somebody vulnerable. The definition taken from the Domestic Crime, Violence and Victims Act already suggests what the police might consider under the definition of “vulnerable”.

I understand where the noble Baroness is coming from. I was very careful to consider the issues that she raised in Committee and I wanted to explore them with officials in great detail before bringing the amendment back to your Lordships today. However, I am as convinced as I can be that this is a clear safeguard. Women in refuges or secure housing are clearly caught by the other limb of the Bill, meaning that they would have been in a refuge centre because somebody known to them had been violent towards them. That is clearly covered by the other part of the Bill and would mean that, if it was anybody known to the victim, that would allow the police to apply for that DNA to be retained.

I am clear that the wording is sufficiently comprehensive to cover what we are trying to achieve, which I outlined in moving the amendment, and at the same time to protect those who are most vulnerable. I shall of course be willing to discuss further with the noble Baroness outside the Chamber any of her concerns, but I felt that it was appropriate for me to move this amendment.

20:01

[Baroness Hamwee]

The noble Baroness pointed to the words “or otherwise” at the end of the amendment. I may not have been paying sufficient attention to the argument, in which case I apologise, but if this matter is considered further perhaps she would take on board that within this definition the impairment is through only physical or mental disability or illness, and that the last five words are a description of what might cause the physical or mental disability or illness. Therefore, one cannot read “or otherwise” as extending the impairment. I repeat: the impairment is only through disability or illness. As I listened to the noble Baroness, I thought that she was asking us to read “or otherwise” as adding to “disability or illness”, which I do not think it does.

[Baroness Stowell of Beeston]

I am sorry if I in any way misled your Lordships. In her definition of those final five words—particularly the use of “otherwise”—the noble Baroness is correct. I was seeking to make it clear that impairment through physical or mental disability could be due to old age or otherwise. I am not trying to introduce something new; I am saying that it is possible for the impairment to be not just limited to old age. I hope that I am making myself clear; it does get rather complicated. However, in simple terms, I think that the noble Baroness is right.

Amendment 6 agreed.

Clause 14 : Destruction of samples

Amendment 7

Moved by

[Baroness Stowell of Beeston]

7: Clause 14, page 10, line 36, at end insert—
“(5A) The responsible chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order to retain a sample to which this section applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5) if—
(a) the sample was taken from a person in connection with the investigation of a qualifying offence, and(b) the responsible chief officer of police considers that the condition in subsection (5B) is met.(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—
(a) disclosure to, or use by, a defendant, or(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.(5C) An application under subsection (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5).
(5D) If, on an application made by the responsible chief officer of police under subsection (5A), the District Judge (Magistrates’ Courts) is satisfied that the condition in subsection (5B) is met, the District Judge may make an order under this subsection which—
(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5), and(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.(5E) An application for an order under subsection (5D) (other than an application for renewal)—
(a) may be made without notice of the application having been given to the person from whom the sample was taken, and(b) may be heard and determined in private in the absence of that person.(5F) A sample retained by virtue of an order under subsection (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.
(5G) A sample that ceases to be retained by virtue of an order under subsection (5D) must be destroyed.”

[Baroness Stowell of Beeston]

My Lords, as we have previously discussed, the Bill creates a general rule that all individual samples will be destroyed within six months of being taken. This represents a significant step in protecting the civil liberties of those whose DNA is taken in the course of a criminal investigation, as it ensures that the particularly sensitive genetic material, which is generally not needed for identification purposes, is destroyed at the earliest opportunity.

However, as we have proceeded with our consideration of how to implement the provisions of the Bill, prosecutors at the Crown Prosecution Service have made representations to us that, in a limited number of cases each year, it would in fact be necessary to retain the individual samples in order to deal with any subsequent challenge by the defence to the comparison made between the DNA of the individual and that found at the crime scene.

Prosecutors are concerned that, if they are not able to retain samples in these cases, they might be unable to withstand such a challenge and acquittals on technical grounds might result. An example of the type of case where such an issue might arise could be where the crime scene stain contained a mixture of, for example, the blood of both a murder victim and their attacker, and possibly a third person, such as an innocent housemate of the victim. In such a sample, the quantity of material from the victim is likely far to exceed that from the attacker and the innocent third party but, without retaining the reference samples from all three individuals, the chemistry and analysis used to derive the three individual profiles, and thus to make a match to the suspect, might be open to challenge in court.

Amendment 7 would therefore insert into Clause 14 a mechanism to enable the police, very early in a case before any samples had been destroyed, to make an application to the local magistrates’ court to retain all the individual samples in a case for a period of 12 months. That should be long enough in the majority of cases to identify a suspect and complete the pre-trial disclosure process, as part of which it would be established whether the defence intended to mount a challenge to the derivation of DNA profiles and/or matches. If not, the material would be destroyed at that point.

If a suspect had not been identified at the 12-month point, or if the derivation of the profiles and/or matches was still in dispute, the police would be able to apply to the courts to retain the material for a further 12 months, with further such applications available until either the case was concluded or there was no need to retain it any longer. If at that stage a suspect had been identified and criminal proceedings were under way, Section 66 of the Courts Act 2003 would allow the trial judge to deal with the application to continue to retain the samples.

I emphasise to your Lordships that we anticipate this procedure being used in only a handful of cases each year, all of which must be serious crimes on the qualifying offences list. While biological samples will be retained following a successful application, those samples will be able to be used only in the case for which they are taken and no extra profiles will be retained on the National DNA Database.

Given that the concerns of prosecutors would also apply in respect of the prosecution of those arrested under the Terrorism Act 2000, we are making similar provision in Part 1 of Schedule 1.

I turn briefly to the other amendments in this group. Amendment 8 to Clause 17 is technical and confirms that material taken under the regimes in the International Criminal Court Act and the Terrorism Prevention and Investigation Measures Act is not subject to the rules in the Police and Criminal Evidence Act but to the rules in those Acts.

The amendments to Clause 18 make it clear that, in respect of a DNA profile, the responsible chief officer is the one whose force took the original sample rather than the one in whose force area the forensic science laboratory is located, while Amendment 14 to Clause 21 removes the definition of the phrase “law enforcement authority”, which is not used elsewhere in that clause.

Finally, I take this opportunity to give notice to the House that we are considering whether it would be helpful to clarify further the scope of the regime for the retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008. If we conclude that further clarification would be helpful, I propose to bring forward further amendments to Schedule 1 to the Bill at Third Reading. Naturally, I will give noble Lords proper notice of any such amendments, should they prove to be necessary.

I should have said at the beginning that, in moving Amendment 7, I was speaking also to Amendments 8, 9, 10, 11, 12, 13 and 14.

[Lord Rosser]

My Lords, I thank the noble Baroness for that explanation of the reasoning behind these amendments. I want to raise a question about a particular part of the amendment rather than to make any point in opposition to the amendments.

The amendments in this group appear to require the application to be made before a district judge in the magistrates’ court. Will the noble Baroness confirm what appears to be the case; namely, that an application could not be made before lay magistrates in the same court? I may be wrong, but if that assumption is right, will the Minister say why this is the case on this issue, since it does not relate, for example, to terrorist activity or threats to national security? As I understand it, the issue simply concerns the case for retention. Is it because there is an existing statute that already provides for this approach? Is it because it is considered that such applications will normally involve complex issues of law? Is it envisaged that such applications will normally be lengthy hearings lasting more than one day? Is it because lay magistrates do not want this responsibility? Is it a lack of confidence in lay magistrates? Or does the reference to “district judge” include lay magistrates? That may possibly be the explanation.

Will the Minister also say whether there is a district judge sitting at every magistrates’ court at which such an application might most conveniently be made; whether it is envisaged that a district judge will hear such applications on occasions outside court sitting hours, away from the court; and what will happen if the district judge who is down to hear the application is off sick on the day fixed for the hearing and, as is often the case, no other district judge is sitting at that magistrates’ court? Will the date for hearing the application have to be rearranged, or in those circumstances would arrangements be made for the application to be heard by a Bench of lay magistrates already sitting that day at the court in question? To cover myself, perhaps I should declare that I am a lay magistrate—but I am not asking these questions in order to tout for additional business.

[Baroness Stowell of Beeston]

My Lords, I will speak briefly on one aspect of the amendment that might be of interest to the noble Lord, in the hope that further advice might wing its way to me. It may be that the specification of a district judge might relate to the fact that the application by the police in the first instance would be ex parte. That may be why the application needs to be made to a district judge rather than to a lay magistrate. I can now confirm that the application will be only to a district judge, not to a lay magistrate, because it is an exception to a general principle requiring discretion, and is not to be used routinely. If no district judge is available, the application could be heard by a circuit judge if one is available. If after that explanation the noble Lord feels that I have not answered all his questions, I will follow up in writing.

Amendment 7 agreed.

Clause 17 : Exclusions for certain regimes

Amendment 8

Moved by

[Baroness Stowell of Beeston]

8: Clause 17, page 12, line 20, at end insert—
“(2A) Sections 63D to 63T do not apply to material to which paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 (requirement to destroy material) applies.
(2B) Sections 63D to 63T do not apply to material to which paragraph 6 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (requirement to destroy material) applies.”

Amendment 8 agreed.

Clause 18 : Interpretation and minor amendments of PACE

Amendments 9 and 10

Moved by

[Baroness Stowell of Beeston]

9: Clause 18, page 13, line 2, leave out from “to” to “63R” in line 4 and insert “material to which section 63D or”

10: Clause 18, page 13, line 6, leave out “or derived”

Amendments 9 and 10 agreed.

Schedule 1 : Amendments of regimes other than PACE

Amendments 11 to 13

Moved by

[Baroness Stowell of Beeston]

11: Schedule 1, page 110, line 17, at end insert—
“(5A) The responsible chief officer of police may apply to a relevant court for an order to retain a sample to which this paragraph applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5) if—
(a) the sample was taken from a person detained under section 41 in connection with the investigation of a qualifying offence, and(b) the responsible chief officer of police considers that the condition in sub-paragraph (5B) is met.(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—
(a) disclosure to, or use by, a defendant, or(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.(5C) An application under sub-paragraph (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5).
(5D) If, on an application made by the responsible chief officer of police under sub-paragraph (5A), the relevant court is satisfied that the condition in sub-paragraph (5B) is met, it may make an order under this sub-paragraph which—
(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5), and(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.(5E) An application for an order under sub-paragraph (5D) (other than an application for renewal)—
(a) may be made without notice of the application having been given to the person from whom the sample was taken, and(b) may be heard and determined in private in the absence of that person.(5F) In Scotland, an application for an order under sub-paragraph (5D) (including an application for renewal) is to be made by summary application.
(5G) A sample retained by virtue of an order under sub-paragraph (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.
(5H) A sample that ceases to be retained by virtue of an order under sub-paragraph (5D) must be destroyed.”

12: Schedule 1, page 110, leave out lines 23 and 24 and insert—
“(7) In this paragraph—
“ancillary offence”, in relation to an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008, means—
(a) aiding, abetting, counselling or procuring the commission of the offence, or(b) inciting, attempting or conspiring to commit the offence;“qualifying offence”—
(a) in relation to the investigation of an offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984,(b) in relation to the investigation of an offence committed in Scotland, means a relevant offence, an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008 or an ancillary offence to an offence so listed, and(c) in relation to the investigation of an offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));“relevant court” means—
(a) in England and Wales, a District Judge (Magistrates’ Courts),(b) in Scotland, the sheriff—(i) in whose sheriffdom the person to whom the sample relates resides,(ii) in whose sheriffdom that person is believed by the responsible chief officer of police to be, or (iii) to whose sheriffdom that person is believed by the responsible chief officer of police to be intending to come; and(c) in Northern Ireland, a district judge (magistrates’ court) in Northern Ireland;“relevant offence” has the same meaning as in section 19A of the Criminal Procedure (Scotland) Act 1995;
“a relevant search” has the meaning given by paragraph 20A(6).”

13: Schedule 1, page 111, line 20, at end insert—
“20HA Paragraphs 20A to 20F and 20H do not apply to paragraph 20A material relating to a person detained under section 41 which is, or may become, disclosable under—
(a) the Criminal Procedure and Investigations Act 1996, or(b) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act.”

Amendments 11 to 13 agreed.

Clause 21 : Reports by Commissioner

Amendment 14

Moved by

[Baroness Stowell of Beeston]

14: Clause 21, page 16, line 31, leave out subsection (6)

Amendment 14 agreed.

20:15

Clause 24 : National DNA Database Strategy Board

Amendment 15

Moved by

[Baroness Hamwee]

15: Schedule 1, page 113, line 3, at end insert—
“Work-related requirements6A Regulations may provide that a claimant who—
(a) has a right to reside in the United Kingdom under the EU Treaties, and(b) would otherwise fall within section 19, 20 or 21,is to be treated as not falling within that section.”

[Baroness Hamwee]

My Lords, Amendment 15 deals with membership of the National DNA Database Strategy Board. In Committee, I moved an amendment requiring rules about the composition of the board to be included as part of the governance arrangements. The Minister reassured me that the Government's rules would include full membership of the board. She said that an independent element in the form of representation from the Information Commissioner's Office and the National DNA Database Ethics Group would be included. She also said that she would be happy to receive suggestions to strengthen the independent element. This is such a suggestion.

My point in that debate and now is that an independent element need not be, and possibly should not be, a member of the board in a representative capacity. Noble Lords will all have experience of boards to which independent members bring exactly that: independence. They come as individuals with not only independence but judgment, experience of the wider world and so on. If they are representatives of other organisations, they have a rather different role to play. My reason for moving the amendment again is not just to respond to the invitation issued in Committee but to ask the Government to bear this in mind and not exclude the desirability of having true independence involved in the governance of the board. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend for her explanation in moving her amendment. The first thing I will make clear to her is that we are not averse to including on the National DNA Database Strategy Board someone who is wholly independent in the sense that they have no direct or indirect interest in this field and, as such, can exercise a role akin to that of a non-executive director, as my noble friend explained and illustrated. All I can do at this time is restate what I said in Committee: namely, as she acknowledged, that the governance rules that must be published under the new Section 63AB(6) of PACE will include the full membership of the board, and that membership will continue to include an independent element in the form of representation from the Information Commissioner's Office, the National DNA Database Ethics Group and the Forensic Science Regulator. We do not consider it necessary to specify the membership of the board in the Bill or at this time to specify what my right honourable friend the Home Secretary might include in the governance when it is decided and published, but I am sure that in reviewing the membership of the board she will consider the points that have been made by my noble friend. I think she will want to ensure that we are not so specific in those governance rules that they prevent us changing any of the independent elements of the membership of that board in future, when different organisations might be associated with DNA.

I hope that my explanations have given my noble friend the assurance she needs that we understand the importance of an independent element in the board and that we want to retain flexibility for the future in the make-up of the board. However, we will certainly take into account the points she has made.

[Baroness Hamwee]

My Lords, I thank the Minister for that reply. I do not require the detail now; that would not be sensible. My point is to ensure that the door is not closed to prospective independent members who are not representative of or members of related and connected organisations. The Minister said that the Government are not averse to that, and I am glad that the door will be open and that the point is, I hope, taken. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16

Moved by

[Lord Campbell-Savours]

16: Clause 24, page 18, line 14, at end insert—
“(10) The Secretary of State may by regulation introduce a statutory framework for the establishment of a Voluntary National DNA database.
(11) The National DNA Database Strategy Board shall, within a period of 12 months of commencement, report to the Secretary of State with recommendations on the establishment of a Voluntary National DNA database.
(12) The report on the establishment of a Voluntary National DNA database shall include the following—
(a) advice on options for the funding (both public and private) of the DNA database;(b) advice on proposals for the charging of individuals for the taking and retention of sample DNA;(c) advice on the security arrangements governing the retention of DNA samples;(d) advice on the categorising of donors from whom DNA samples have been taken and from which a DNA profile has been derived;(e) advice on the arrangements for the transfer of donor identification between categories;(f) advice on requests for removal of individual DNA profiles from the database;(g) advice on access by a responsible police officer to DNA profile information on the database; and(h) advice as to which statutory organisation and in what circumstances access to DNA profile information shall be given.”

[Lord Campbell-Savours]

My Lords, this amendment is my modest attempt to secure the introduction of a voluntary national DNA database. I suppose I could have introduced the amendment under the voluntary donation provisions in Clause 10; however, on reflection I decided to graft the responsibility for working up the arrangements for establishing such a scheme on to the functions of the National DNA Database Strategy Board. If the amendment appears clumsy, it is because I am not a lawyer.

During the course of a somewhat flippant area of debate in Committee, the noble Lord, Lord Henley, with a smile on his face, suggested that a special database should be set up for voluntary donors. I think he called it the Baroness Royall database.

[Baroness Royall of Blaisdon]

He did.

[Lord Campbell-Savours]

I put the same proposition more seriously. I am convinced that there is much support throughout the United Kingdom for the establishment of such a database. I have no evidence, apart from anecdotal evidence and conversations. However, I believe that many people out there would have no problem donating their DNA to such a database. The huge and undeniable benefit of going down the voluntary database route is that it would greatly help to take the stigma out of DNA retention and would help to develop public recognition of the benefit of retaining DNA. The bigger the voluntary database, the lower the level of stigma will be.

It is inevitable that over this century the state will hold more and more information in secure conditions. Better that the collection of such information be organised in a thought-out and structured manner rather than in conditions of panic when the state feels so much under threat that its only response is overreaction, with resultant confusion in policies on law and order.

We are slowly moving into a world where the measure of our freedom is dependent on our freedom to walk where we wish, live where we wish, travel where we wish, interact with others where we wish, transact where we wish and live longer without fear of assault on our person, our possessions and our civil rights. That will require some data to be held on us as individuals. I believe that there are many millions out there who are prepared to invest in the protection of their freedom. For me, the question is not so much the nature of the data to be held—I think that at the end of a national debate we can agree on that—but how we can arrive at a point where the public have swallowed their misgivings and reservations about the secure handling of data. As the former Metropolitan Police Detective Chief Inspector Colin Sutton put it in the Times two weeks ago:

“We are seemingly happy to attach biometrics to our passports—and therefore to our identities—but fearful of DNA. Our data-dependent society requires everyone to be ‘on the system’”.

As the senior judge Lord Justice Sedley put it in the Times on 6 September 2007:

“Where we are at the moment is indefensible. We have a situation where if you happen to have been in the hands of the police, then your DNA is on permanent record. If you haven’t, it isn’t … It also means that a great many people who are walking the streets, and whose DNA would show them guilty of crimes, go free”.

He went on to say that expanding the database to cover the whole population had,

“very serious but manageable implications”.

We then have the very interesting comments of Professor Sir Alec Jeffreys in his evidence to the Commons Home Affairs Select Committee on 3 February 2010. Sir Alec was described by the chairman of the committee as the person who,

“invented techniques for DNA fingerprinting in 1984”,

and as,

“the person who … invented this course of genetics”.

Sir Alec fathered the scheme proposed by the Government in the Bill. It was he who called upon the Home Office to adopt the Scottish model due to his profound concerns over the operation of the DNA regime in England and Wales at that time. To be fair to him, I quote his response to Gary Streeter MP’s questions in its entirety, but briefly. Gary Streeter asked him:

“Do you think it would be fair if the police did not just keep the samples from the people they have arrested who turn out to be innocent but if we were all on the database? How would you feel about that? Would that be a better system than the current system?”.

Professor Sir Alec Jeffreys replied:

“It would be a much less discriminatory system. I do not want to discuss the issue of discrimination against certain classes of our society, but it would get rid of issues of discrimination. I personally would be very uncomfortable with the idea that the police would have such a database. My vision would be of a parallel database … that would allow the police to keep their criminal DNA database and then one can image how those two could possibly interface. Very, very interestingly, the United Arab Emirates has agreed to go ahead with mandatory databasing of the entire population—and without any change in legislation, as far as I can tell. They intend doing that over the next few years. There is an experiment that is about to start which will greatly merit a very careful watch, to see whether it really does impact on criminal detection or whether it is seen by the UAE society as much more of a surveillance tool—which would be my worry, I have to say”.

This is the man who basically invented this whole science.

My amendment is but a tentative step down that route. The reference to “categorising of donors” is the move towards the parallel database. There are a number of questions that would need answers if we were to proceed with a voluntary DNA database. What is the cost to be? Who will pay for it? What is the scale of public support? What security arrangements could be put in place to protect such data? What arrangements could be made for the removal of data? Who would have access to the data? How would one categorise data so as to de-stigmatise the retention of data while allowing for the transfer of data between the various categories?

These questions would be the subject of inquiry, investigation and debate within the National DNA Database Strategy Board, which is what I am recommending in my amendment. I have used the board as a peg on which Parliament would place the responsibility for taking the whole enterprise forward. I beg to move.

[Lord Marlesford]

My Lords, I strongly support the noble Lord, Lord Campbell-Savours. He is merely putting forward, probably before his time, something that will inevitably come. The sad thing is, as we have more and more science at our disposal to improve the standard of our lives throughout the world, every now and again it is resisted. There is nothing new in that; it is always happening.

When the noble Lord was speaking, what immediately occurred to me as a good example of scientific progress that is being rejected in some areas at the moment is GM foods. There have even been examples of modern vaccinations being rejected. Clearly, DNA being the most certain of the biometrics currently available is something that will come. It is used in other countries. There is nothing sinister about it. The noble Lord’s idea of a voluntary database is extremely sensible and a very good way of moving forward.

Of course one has to recognise the cultural inhibitions and the emotional barriers to doing these things. I always felt that the problem with the identity card system that the previous Government aspired to and which the current Government have scrapped was not the identity part of it but the cards, because people saw identity cards as being echoes of fascism and totalitarianism of various sorts. In any case, the card itself is quite a dangerous thing. The great thing about biometrics is that if you want to know who someone is, you have the biometric and thus the person. If you want to check whether A is who he or she says they are, you take the biometric. You cannot compare the person with a card, because a good criminal or a good terrorist would ensure that the chip on the card matched themselves, but you can compare them with a fundamental base. This will come. Of course, as the noble Lord said, we are in a complicated society in which people move, but the global economy is nothing compared with the global society in which we will move, and as this happens we have to be able to dispose of resources efficiently to help people who need help rather than those who do not, and of course to fight crime as well. We have to have the means of knowing who people are. What the noble Lord suggests is thoroughly sensible, and as it would give the Government only the powers to do it I hope that they will look at it very carefully.

20:30

[Lord Hughes of Woodside]

My Lords, I rise to support my noble friend Lord Campbell-Savours, who has put the case for his amendment with eloquence and his usual attention to detail, which we should not simply shrug aside.

There is a great feeling these days that we are moving towards some sort of society that is totally controlled by the powers that be, known or unknown. People frequently call into aid the infamous—or famous, if you like—book 1984, in which Big Brother was always watching you. Of course we do not want to move down into that kind of society, and although I support the idea of a national DNA database, as I said earlier, if we cannot get one by normal means then by all means let us get it by voluntary means.

Perhaps I might correct an impression that I gave. I seem to have misled the noble Lord, Lord Henley. In an earlier debate, I spoke about the length of time for which DNA evidence might lie about unidentified. I am not suggesting for one second that such evidence would be destroyed as a result of this Bill. I am perfectly aware that it would not be. The point I was trying to make is that there is an ever increasing gap between the time when unidentified DNA evidence comes to the notice of the police and the authorities and the time when it is identified. Thus the gap between the availability of the evidence and its identification and the identification on the database is growing wider and wider.

One noble Lord said that there was an argument for keeping DNA for ever on a database. I accept that. I am not the least bit frightened about DNA material being kept if it is in the public good. It is a question of balance. The Government have decided what the balance is, and some of us might disagree, but I think there is common ground between us on the point that the objective of the exercise of collecting DNA evidence is to prosecute and to convict the guilty, and where possible to protect the innocent, who might be attacked by someone who has not been charged previously but who then can be.

I will not labour the argument except to say that a voluntary database is a very good idea. I wonder whether my noble friend might agree that we should have some sort of pilot system to try to persuade people that everyone should be on it. Perhaps we should proceed by trying to persuade people that such a thing is a good idea and to volunteer for a limited period to see what the take-up is.

With these few words, I certainly support my noble friend’s amendment, and I hope that the House will support it.

[Lord Desai]

My Lords, I apologise for not having spoken before in a debate on this Bill. I have listened to the excellent idea of my noble friend Lord Campbell-Savours about a voluntary DNA database, but I want to say just one thing. Yes, a voluntary database is a good idea, but if people do not volunteer they should not be marked down as being unco-operative. It is quite likely that some people will not like the idea of offering their DNA. It would be a very bad thing if it got to the stage where not volunteering became a black mark against you. It would detract from the virtue of my noble friend’s suggestion. Certain ethnic communities, especially women, may not want to have their DNA taken. Therefore, we must make sure that it is not held against them if they do not volunteer.

[The Earl of Erroll]

My Lords, I was quite attracted by the concept of the freedom to choose voluntarily to do something but in this case it leads us astray. History teaches us that, if there is a large amount of private information out there which a Government think is useful, they will acquire access to it. For example, the USA Patriot Act gives the American Government access to anything they want in the name of trying to fight terrorism. Therefore, these data will not necessarily be secure in perpetuity if someone sees a use for them.

I have also learnt from history that governments who accumulate a large amount of information on their citizens end up using it to control the everyday lives of those citizens. For starters, you only have to look at communist Russia, watch “Dr Zhivago”, or look at East Germany, Albania or all sorts of places, where, at the end of the day, these things are used to control behaviours. I am sorry but I do not trust the people who end up in charge of these things. We need to look 10, 20 or 30 years ahead and we do not know who will be in control then.

Perversely, as a result, it does not necessarily protect citizens. It is not as if this will give an automatic one-to-one match. It would do what this Bill is trying to prevent. The Bill is trying to protect us from the Government trying to accumulate large amounts of data. DNA of course is not infallible. Ultimately, it is vulnerable to contamination of samples and laboratory error. It is only an approximate match; it is not a one-to-one match the whole time. Therefore, there will be errors which could be misused. I think that this amendment concerns a bigger subject and should be left out of the Bill. It does not fit with it.

[Baroness Royall of Blaisdon]

My Lords, I rise not to support my noble friend on behalf of the Opposition necessarily but, as I said in Committee, as an individual I have a great deal of sympathy with my noble friend’s amendment. Like my noble friend I believe that such a voluntary database would lower the level of stigma and in the future might enhance public confidence in the secure handling of data, which is very necessary. As my noble friend has said today, the state will undoubtedly hold more and more information about its citizens.

I was also very interested to hear of the response by Professor Jeffreys to Mr Gary Streeter MP, which is worth pursuing. I do not know what the Government’s response to my noble friend’s amendment will be, although I suspect that they will reject the amendment. However, it is an interesting suggestion and I hope that, if the amendment is not accepted by the Government, the National DNA Database Strategy Board will look at the proposal as perhaps something interesting to pursue on behalf of the citizens of this country and their safety.

[Lord Henley]

My Lords, the noble Baroness guessed right in that I will be rejecting the amendment or at least not encouraging the House to accept it. The noble Lord, Lord Campbell-Savours, like Jonathan Swift, made what is described as “a modest proposal” and claimed that I had recommended this policy in Committee with a smile on my face. The noble Lord should not always take me totally and utterly seriously, even in Committee, whether there is a smile on my face or otherwise. I will have to look carefully again at what precisely I said at that time.

If the noble Lord is of the view that he or others should be able to go along and hand in their DNA to the police, I am more than happy for them to do that. I will escort him to the police station in Workington, Carlisle or whatever town in the north-west he finds most convenient. We will go together and I will assist him in that process. Having said that, I do not think that this proposal really has much running for it, although I can see the arguments put forward by the noble Baroness, Lady Royall, about reducing stigma and other such matters. Those remarks were echoed by the noble Lord, Lord Desai, although he went on to make the important point about those who do not volunteer and whether they would have problems. I will get to that in due course.

I want to make only one or two points about the amendment because I do not think we should waste too much time on it, modest proposal though it was. First, I do not believe that there is a demand for such an idea. The police service has not been demanding the establishment of such a database and I do not believe that there is any great demand for one within civil society as a whole. There might be a few public-spirited individuals such as the noble Lord, Lord Campbell-Savours, and others who wish to come forward and provide their DNA for a database, but I suspect that they would be few and far between. I would also suggest that it is unlikely that individuals such as the noble Lord who did come forward would have any involvement in criminality, and that would be the reason they were happy to put forward their DNA. It is therefore difficult to see what the use might be for such material being stored on a voluntary database.

Secondly, I have a rather more important objection to the amendment, which relates to new subsection (11) where it proposes that the,

“National DNA Database Strategy Board shall, within a period of 12 months of commencement, report to the Secretary of State with recommendations on the establishment”,

of the database, and then in subsection (12) it sets out what the board should do. I do have to say that having the board carry out a feasibility study within 12 months of the commencement of the Bill would be asking rather a lot. The board’s workload will already be high during that period in supervising the establishment of the new procedures required by the Bill. That will take up a considerable amount of its time. The board has no resources to do this and we do not consider it appropriate to require it to do all this extra work at this time.

Having said that, I will put the smile back on my face and say that it is an interesting idea, as the noble Baroness put it, and a modest proposal. No doubt he will be more than happy to hand in his DNA in due course, but I do not think that I can support his amendment at this stage.

[Lord Campbell-Savours]

My Lords, I am grateful to the noble Lord, Lord Marlesford, for his recognition of the inevitability of the developments in DNA biometrics and how, in the end, there will be a national database. I am absolutely convinced of that, although it probably will not happen in my lifetime. I am also grateful to my noble friend Lord Hughes of Woodside on the question of the pilot. I do not think that this would cost the Government a lot of money. The only cost would be incurred by the strategy board in carrying out the work that is necessary for the purposes of my amendment. The fact is that we might find some great public benefactor, a private person, to fund a pilot which, over the years, might develop into a national DNA database. All I was asking was for the framework for a voluntary database to be considered, not for the Government to spend money on establishing it.

I recognise the concerns of my noble friend Lord Desai on the issue of black marks being put against those who refuse to join in. As I say, it would be voluntary, and in so far as it is voluntary I do not think that that issue would arise. I am sorry that the noble Baroness, Lady Hamwee, was not able to intervene on this occasion, because she too is recorded in Hansard as expressing the view that it might have some effect on reducing the stigma generated over the retention of DNA. I am grateful to my noble friend Lady Royall of Blaisdon for expressing the hope that we can at least consider this seriously at some stage in the future.

Perhaps I may say to the Minister that this is a debate that is going to carry on. As I have said, I believe it is utterly inevitable that this will happen. It is just a question of which Government will have the courage actually to take on the responsibility of taking the project forward. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

20:45

Clause 25 : Material taken before commencement

Amendments 17 and 18 not moved.

Clause 26 : Requirement for consent before processing biometric information

Amendment 18A

Moved by

[Lord Henley]

18A: Clause 26, page 19, line 22, leave out “Subsection (2)” and insert “This section”

[Lord Henley]

My Lords, I shall speak also to the other amendments in my name in this group; that is, Amendments 19, 22, 25, 26, 27, 28 and 29. We will also consider in this group Amendments 20, 21 and 23, in the name of my noble friend Lady Hamwee, and Amendment 24 in the name of the noble Baroness, Lady Royall. I shall respond to those as I come to the end of my remarks, but, at this stage, I shall speak just to my own amendments.

We consider a child’s biometric information to be highly personal and sensitive and, as such, it should be protected. It is right that schools and colleges should be required to obtain the written consent of a child’s parents if they wish to take and process this information.

We listened carefully to the concerns raised in Committee about these provisions. In particular, my noble friend Lord Lucas and the noble Lord, Lord Rosser, argued that the requirement to obtain the written consent of both parents would place too great a bureaucratic burden on schools and could have the effect of dissuading schools and colleges from using biometric recognition systems.

The Government are persuaded that we should remove the “dual consent” requirement and instead provide for a system whereby all parents, and any other individual with parental responsibility for a child, must be informed in writing that the school or college intends to take and process the child’s biometric information and that they have a right to object. As long as no one objects in writing, the written consent of only one parent will be required. This change strikes the right balance between ensuring that the views of both parents continue to be taken into account, with their right to object preserved, and ensuring that the administrative burden on schools and colleges is not too great.

The Government’s amendments also make the consent requirements in the Bill more consistent with all other forms of consent that schools and colleges are required to obtain, therefore alleviating any additional bureaucratic burden. The main difference in this instance is the express provision to notify all parents and the stipulation that, if any parent objects, the processing of their child’s biometric information cannot take place. I beg to move.

[Baroness Hamwee]

My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.

Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.

The UN Committee on the Rights of the Child has made it clear that:

“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.

Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.

I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.

The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,

“it is they who should in the first instance be informed and consulted about the use of their personal data”.

[Lord Lucas]

My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.

[Lord Rosser]

My Lords, we have Amendment 24 in this group. The purpose of the amendment is to effectively remove from a child of primary school age the application of the provisions that would enable a child to override a decision by their parent or parents that their child’s biometric information should be processed. However, I fear that the wording of the amendment could be interpreted as also excluding children above 12 years of age from the provisions in the Bill on this issue, when that is not in fact the intention. Our view is that no child should be able to overrule their parents’ decision on this issue in the way envisaged in the Bill; indeed, we believe that the process should be agreed, or otherwise, by the parent on the basis of having to opt out rather than opt in, as the Government propose.

However, the Government have resisted changing the Bill other than to say that the consent of only one parent is required, provided the second parent is not raising an objection. Hence, our Amendment 24 seeks to address the issue of overriding a parent’s consent in relation to children of primary school age. The Government have argued that a child of primary school age should be able to make this decision. However, in fact, the decision that the child can make is restricted in a way that the Government have not yet explained. If the Government consider that a child of primary school age, from five to 11, is fully able to understand the issues involved and make a decision, which goes against the expressed wishes of their parent or parents that their child's biometric information should be processed, then why is it that if the parent, or one of the parents, declines to agree that their child's biometric information should be processed, the child should not also be given the opportunity to override that decision by saying that they do wish their biometric information to be processed? Indeed, in the light of the Government's amendment relating to parental consent, one parent could agree to their child's biometric information being processed, the other could disagree, and then irrespective of the fact that the child might wish to have their biometric information processed, their view would count for nothing, even though within the family two were in favour—that is, the child and one parent—and only one was against—that is, one parent.

What is the argument in favour of that situation when the Government are saying that a child should be able to overrule the wishes of their parents if the child says they do not want their biometric information to be processed? There may be reasons why a child would wish to agree to their biometric information being processed in a situation where at least one parent had said no. It might be that all or nearly all the other children in the class had agreed to have their biometric information processed, and the child might not wish to be different, or be treated differently, and indeed this might be a cause of concern to the child. Yet under the Bill, while a child of five to 11 years of age could stop their biometric information being processed, they could not insist on it being processed.

In the absence of a convincing explanation for this apparent anomaly—perhaps the Minister will provide one when he responds—there must be a suspicion that these arrangements are being introduced, under the guise of a very selective definition of children’s rights, when what they are really designed to do is implement an unsaid government policy of effectively making impossible the continued processing of a child's biometric information.

The Minister asked in Committee if we were proposing that a child should be dragged kicking and screaming to have their biometric information processed if they disagreed when their parents had given their approval. I will come back to that point. The trouble with the Government's proposal is that it provides a child, including a young child of primary school age, with the opportunity to very publicly, in their school, override the wishes of their parents, provided of course that they do not want their biometric information processed, but not if they do, contrary to the wishes of their parents. Apart from the prospect of some parents feeling somewhat humiliated, it is hardly giving a message to young children that they should respect the word and wishes of their parents. Indeed, it is doing the exact opposite. If it is all right to overrule parents’ wishes in this very public way on this issue, why should a young child not get the message that it must be all right to do it over other issues?

No school with any sense would force a child to have their biometric information processed in a situation where just parental approval or non-objection was required, but that child nevertheless still refused. A more sensible approach would be for the school to go back to the parents and invite them to discuss the issue with their child. If the matter could not then be resolved by either the child no longer refusing or, alternatively, the parents deciding to withdraw their consent, the school would do best not to pursue the issue and make a martyr, but to tell the child that if they so wished they could change their mind at any time in future. At least that approach would not leave the school having to give the child an open invitation to overrule the wishes of their parents, as is the case under the Government's proposals.

As I said at the beginning, our amendment does not change the Bill in the way we think it should be changed on this issue but, in view of the Government's stance, it does at least provide that the provisions enabling a child very publicly to overrule their parents—but, strangely only if the child does not want their biometric information processed, and not if they do—does not apply to children of primary school age.

21:00

[The Earl of Erroll]

My Lords, although I would agree that the Government have made an effort to move some way in the direction that we were talking about, I entirely agree with the remarks made by the noble Lord, Lord Rosser. For many schools, particularly the not-so-good schools, fingerprint recognition biometrics are used in order to stop a certain amount of bullying—so that you cannot, for example, tell which children are in receipt of free school meals or getting special provisions. The moment you start to have a way of distinguishing those matters, other children will have a lever to start bullying, causing disruption et cetera.

It was said that if the parents decided that the child should not have its biometrics kept they could use a card and some other system would have to be provided. But that in itself could become a target for the other children. For instance, if you knew that little Johnny had a card and was also vulnerable, what could be better than to remove his card and destroy it? He will probably not dare tell people that he has been bullied in this way. People might even use that card to gain stuff for themselves. Your Lordships might say, “It is PIN-protected”. However, it would not be very difficult for other children to bully that PIN number out of little Johnny.

We have to realise that, in the real world, these things are not ideal. These biometrics were being used to provide a much more even way of identifying children with special requirements without other children knowing that they have them. The provision could drive a coach and horses right through this very efficient way of doing it. The Government should therefore think again about what the noble Lord, Lord Rosser, said, and produce their own amendment for Third Reading. The system will need to work in that sort of way so that it can be changed and the child can opt out. If the child thinks, “I am going to get bullied”, it may well want to overrule its parents. In this case, I do not see why the child should not.

The other thing that they might want to do—although this would require a few more amendments and I would not begin to attempt those myself—is somehow to find a way of saying that if this is not working because it is starting to cause problems in schools, we could come back and change it without having to go back to primary legislation. Although I do not like the Henry VIII-clause method, perhaps we can bury some part of this in regulation whereby it could be varied if the Minister found later on that it was causing problems in schools. For instance, instead of the parents having to do an opt-in to the system it would have to be a very deliberate opt-out. Something like that could be useful, because I know this all looks great on paper but out there in the real world it does not work that well. People are not reasonable.

There are also a lot of people who cannot read and write. We talk about providing the information in a form which is easily understood by parents but I am told that the adult illiteracy rate is supposed to be 10 per cent. Perhaps it is 14 per cent, I hear, and in some schools you are going to have that. How many languages would you have to translate it into in some schools? We all seem to be assuming that people are reasonable and available, can read and write, and can understand the issues. That is very dangerous. The Minister should probably look at this and try to give himself more flexibility, in case there are some unintended consequences of what is a well-meaning part of the Bill.

The important thing which we want to end up with is that biometric information used by schools for their administration systems cannot be used outside the schools, and there are many ways of achieving that other than by this opt-in only basis. We should make sure that it is destroyed the moment that the pupil leaves, because it is not needed for administration purposes, and that is not permissible to use it in any other way. If we think that we can keep a voluntary DNA database secure from the Government, we can keep school databases secure from them and the police, or whoever. It is not the fact of the fingerprint that matters; it is what it is used for. We should perhaps make it so that it is not of evidential quality. I suggest to the Minister that he looks again at this.

[Lord Henley]

My Lords, I note what the noble Earl, Lord Erroll, said in his concluding remarks and we will certainly look at whether any such biometric information should ever be made available outside school. He makes a perfectly valid point on that. Perhaps I might answer some of the points that have been made in the course of this debate, then move my own amendments. It will be open to noble Lords to consider what to do with their own amendments that have been grouped with this later on.

I start with the question of language, which my noble friend Lady Hamwee raised in Amendment 23. The amendment says that information provided by schools and colleges to parents and children on their rights under these provisions must be in a language capable of being readily understood by the parent and child. In response to the noble Earl, Lord Erroll, this is true of all information that is provided to parents, whether illiterate or not, and it is something that schools always have to take into account when trying to get to their parents. As I indicated in our deliberations in Committee, the Bill provides that parental consent must be informed and freely given. Schools and colleges should take steps to ensure that parents receive full information about the processing of their child’s biometric information.

I can give an assurance that the Department for Education will issue advice to schools on the provisions in this chapter of the Bill. That advice will include a template consent form for schools to use if they wish. As well as providing information about the type of biometric information to be taken and how it will be used, the advice and the template will refer to the right of parents and pupils to refuse or withdraw their consent and the duty on schools to provide alternative arrangements for those pupils whose information cannot be processed. We will encourage schools to follow the template that we have put forward.

With the aid of this advice, I hope that my noble friend will agree that we can trust schools and colleges to provide appropriate information in the appropriate manner to provide parents and pupils with the right information without the need for an express legal requirement of the kind set out in her amendment.

I turn to my noble friend’s Amendments 20 and 21, which are amendments to government Amendment 19 and seek to ensure that children will also be notified of the processing and of their right to object. We do not consider that an express statutory provision to this effect is necessary, as schools and parents should be trusted to inform children in an age-appropriate manner of what is being proposed, and to ascertain if the child has any concerns about the processing. The proposed government advice will highlight to schools the child’s right to object, and will recommend that parents are made aware of that advice.

I turn to the amendment in the name of the noble Lord, Lord Rosser. I was worried that his arguments were oversuspicious and, at some points, over-Jesuitical. He seemed to think that there was a hidden agenda, and at times I suspect that there was an element of him protesting too much in his objections to what we do. Having said that, I have a degree of sympathy for the arguments that he put forward.

The Government believe that, regardless of their age, all children should have the right to say no to the processing of his or her biometric information, even if that is an uninformed objection from a relatively small child. No child of any age should be coerced, physically or otherwise, to give his or her biometric information. We believe that it would be wrong to ignore the wishes and feelings of even a primary-aged child in this important matter.

[Lord Rosser]

If that is the Government’s view for a child of primary school age, is it also their view that if that child wishes their biometric information to be processed and their parents do not, the child’s view should likewise prevail?

[Lord Henley]

My Lords, I was going to come to that point. The two scenarios are different. This is why I thought that at times his arguments were positively Jesuitical, with one parent pushing one way, one pushing the other and the child possibly going down a third route, if there could be a third route. Why should one or the other prevail? We think it is right that if the parents say, “No, we do not want that”, that should be final. That is why we have tabled the amendments. Even if one parent objects, that should be it. However, because we believe that these things are important, we also feel that, even if the parents want the provision, it is right that the child can opt out, even if he or she is making an uninformed decision. There is a very big distinction between the two matters. That is why I was worried about the arguments that the noble Lord was putting forward. I believe there is little to be gained in overruling the child’s wishes and I am not aware of any specific evidence that—

[The Earl of Erroll]

I was trying to make that same point, although not as well. Does the noble Lord remember being very embarrassed when he was at school by some of the things that his parents did because they did not understand how things were at school? That is the huge danger here. Some parents will be wound up by the Daily Mail into deciding to opt out of providing biometric information and their child will feel incredibly embarrassed because they stand out in class. That could get quite serious. Children may know better in this instance than one thinks.

[Lord Henley]

All of us have been children and most of us in this House are parents. All of us know that one thing that is absolutely universal to all children is feeling deeply embarrassed by their parents. That has been the case since time began. There is no way round that. Children will continue to be embarrassed by their parents, whatever their parents decide to do. The point I am trying to make is that I think there is a very big distinction between the parents saying, “Yes, you should do this”, and the child saying, “No, I want to opt out”, even if he or she is making an uninformed decision; and the other way round whereby it is being suggested that the child should be allowed to opt in even though the parents want to opt out. We want to make it clear to the child that this is a very important decision about giving up some of their own identity. They should be allowed to make that decision for themselves because it is a decision they will have to go on making in the future.

I think that I was the first to use the expression “kicking and screaming” in Committee. I do not think that is something that is likely to happen. A relatively small number of schools will make use of these sorts of mechanics, particularly when we are talking about primary schools. I believe that we can trust parents, schools and teachers to resolve any of the concerns that might crop up. The noble Lord has a point but it is a relatively small point and I do not think that he should get too worked up about it. I assure him that there is no hidden agenda on the part of the Government. I think these matters can be resolved by schools in a sensible way. Therefore, I hope that the noble Lord will not feel it unecessary to move his Amendment 24 when we come to it. I hope that I have addressed the points raised by my noble friend Lady Hamwee in her amendments and by the noble Lord, Lord Rosser.

Amendment 18A agreed.

Amendment 19

Moved by

[Lord Henley]

19: Clause 26, page 19, line 26, at end insert—
“(1A) Before the first processing of a child’s biometric information on or after the coming into force of subsection (2), the relevant authority must notify each parent of the child—
(a) of its intention to process the child’s biometric information, and(b) that the parent may object at any time to the processing of the information.”

Amendment 20 (to Amendment 19)

Moved by

[Baroness Hamwee]

20: Clause 26, line 4, at end insert “and the child”

[Baroness Hamwee]

Our procedures do not allow me to come back on a debate on Report, so I move this amendment to the Minister’s amendment to make a point and ask a question. He said that the Government trusted that schools would notify parents and children of the provision in an age-appropriate manner. My problem is that Amendment 19 refers to notifying only the parent. We have got to this point as a result of our focusing on consent. My question is whether guidance will extend—I think he has more or less said this—to notification to the child in the way that I suggest through this amendment. Of course, that will not deal with the consent but, given the later provisions of Clause 26, am I right in assuming that what I am seeking will in effect apply, because Clause 26 will not be workable otherwise? I would be happy with a yes to both those points. I beg to move.

21:15

[Lord Henley]

My Lords, I hope I have understood correctly what is being proposed but if I have got it wrong I shall certainly write to the noble Baroness and we can return to it later. As I understand it, this is a matter of writing to the parents and it is then for the parents to ensure that the child understands, as far as possible, what is being asked. We also hope that the school will deal with this matter. It will be set out in the guidance that I promised that the Department for Education would bring forward in due course.

[Baroness Hamwee]

I beg leave to withdraw the amendment.

Amendment 20 (to Amendment 19) withdrawn.

Amendment 21 (to Amendment 19) not moved.

Amendment 19 agreed.

Amendment 22

Moved by

[Lord Henley]

22: Clause 26, page 19, leave out lines 29 to 33 and insert—
“(a) at least one parent of the child consents to the information being processed, and(b) no parent of the child has withdrawn his or her consent, or otherwise objected, to the information being processed.(3) Section 27 makes further provision about the requirement to notify parents and the obtaining and withdrawal of consent (including when notification and consent are not required).”

Amendment 22 agreed.

Amendments 23 and 24 not moved.

Clause 27 : Exceptions and further provision about consent

Amendments 25 to 28

Moved by

[Lord Henley]

25: Clause 27, page 20, line 4, leave out from “section” to “if” and insert “26(1A) and (2), the relevant authority is not required to notify a parent, or obtain the consent of a parent,”

26: Clause 27, page 20, line 8, leave out “to give consent” and insert “to object or (as the case may be) consent to the processing of the child’s biometric information”

27: Clause 27, page 20, line 10, after “to” insert “notify the parent or (as the case may be)”

28: Clause 27, page 20, line 11, at end insert—
“(1A) A notification under section 26(1A) must be given in writing, and any objection to the processing of a child’s biometric information must be made in writing.”

Amendments 25 to 28 agreed.

Clause 28 : Interpretation: Chapter 2

Amendment 29

Moved by

[Lord Henley]

29: Clause 28, page 21, line 25, leave out “the consent of no parent” and insert “there is no person falling within subsection (5) who must be notified or whose consent”

Amendment 29 agreed.

Clause 31 : Alteration or replacement of code

Amendment 30

Moved by

[Lord Henley]

30: Clause 31, page 24, line 14, after second “the” insert “alteration or”

[Lord Henley]

My Lords, I shall speak also to Amendments 38, 39, 40, 41 and 46. I can give an assurance that these are all minor drafting amendments. I beg to move.

Amendment 30 agreed.

Clause 33 : Effect of code

Amendment 31

Moved by

[Lord Lucas]

31: Clause 33, page 24, line 36, leave out “evidence in any such” and insert “criminal or civil”

[Lord Lucas]

This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:

“The surveillance camera code is admissible in evidence in any such proceedings”.

Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.

I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.

[Lord Henley]

My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.

I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.

My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:

“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.

I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.

With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.

[Lord Lucas]

My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.

Amendment 31 withdrawn.

Amendment 32

Moved by

[Lord Campbell-Savours]

32: Clause 33, page 25, line 17, at end insert—
“(l) any organisation able to transmit images which derive from surveillance equipment that is subject to the code of practice under section 29”

[Lord Campbell-Savours]

To describe this as a probing amendment is perhaps to stretch parliamentary procedure a bit far. However, I do so in the light of the parliamentary Answer given by the noble Baroness, Lady Browning, on 31 August, which referred me to the Bill and the proposed code of practice in response to my Questions on pixelation. I should tell the House that I gave the department notice of the subject behind the amendment, which is, as I said, the issue of pixelation—the deliberate scrambling and distortion of televised images of people, a practice used by TV production teams to disguise the identity of individuals, more often than not for legal reasons. I believe that there is far too much pixelation in the live media. I understand that TV companies tend to follow rules, some say guidance, set under the Ofcom broadcasting code, which appears to call for,

“caution to be required in programmes covering relatively common but illegal behaviour such as dangerous driving, speeding and criminal damage”,

and state that programmes should not,

“condone or glamorise violent, dangerous or seriously antisocial behaviour”.

I further understand that the broadcasters also follow the Information Commissioner's code of practice, which provides guidance on how best to comply with the provisions of the Data Protection Act 1998 and the eight data protection principles. Page 13 of the Information Commissioner’s code covers disclosure of images from a CCTV system to a third party, which may well be a television company. The effect of my amendment would be in an oblique way to bring those who transmit the images, TV companies, under the umbrella of not only the two codes to which I referred but the new code, in that the two codes, after suitable amendment, would have some regard to the code covering the operation of surveillance cameras as proposed under Clause 29. There might also need to be further amendment to the Data Protection Act.

I readily accept that that is a rather untidy way to raise the issue of pixelation, which in my view is now completely out of control and contrary to the public interest. Broadcasters have become far too sensitive in the use of such images. I perfectly understand why innocent bystanders—that is, people in the crowd—should have their privacy protected under the various codes. Why should a person committing a driving offence, such as driving with no insurance, grossly exceeding the speed limit or being drunk in charge of a vehicle, or urinating in the street, resisting arrest, attacking a person in a public place, being caught in the act of theft, swearing in a public place, using racist language, or swearing at a police officer, breaking into a shop front, as in the recent riots, or being caught in the act of abusing the benefits system or public servants, shoplifting, acting in a corrupt way through bribery—all acts which can be caught on camera—be protected from exposure and transparency by pixelation of their image in the act of wrongdoing?

The camera does not lie. What the camera sees, those present—very often the public at the scene of the incident—can see and witness. To argue, as the broadcasters do, that their actions are intended to ensure that the legal process is not prejudiced is no more than a cop-out. The judgment that the broadcasters should have in mind is not so much whether they are prejudicing legal proceedings, which is rarely the case, as whether transmission would leave them open to a civil action for damages, which could arise only if the transmission of an image misrepresented the action of an individual or individuals.

21:30

I can only repeat that in the circumstances and examples I have given, the camera does not lie, and the public have a right to see the reality and not a distorted, pixelated image. I think that all broadcasters should learn from the position taken during the recent riots by Sky television. It ran lots of pictures of looters and the public responded in a very positive way.

I personally go back to the theory that stands at the heart of my political philosophy and my approach to public life and life in public: transparency changes conduct, whether it is surveillance cameras in public places and shops, buses and trains, Members of Parliament and their expenses, bankers’ bonuses, commission payments on financial services products, calorific information on restaurant menus, or open kitchens in restaurants whereby people can see what is happening in the kitchen. These are all examples of how transparency works and influences conduct. Transparency invariably affects conduct. It is the new agenda and, in my view, along with environmental politics and industrial democracy, it will dominate the next century. I believe that it is up there at the centre of discussions about political philosophy. Where anti-social behaviour and wrongdoing are involved, broadcasters should be far more liberal in their attitude to transmission. I reiterate that the public have a right to know.

However, this is not an ideal amendment on which to raise this issue. It is a peg on which the House can at least hang the opportunity to consider pixelation and its effect on the growth of the transparency agenda. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Campbell-Savours, for moving this amendment. I have been provided with speaking notes to address some of the points that he has raised but, before I get to them, it occurs to me that perhaps he is raising two different issues here. I speak as someone who worked at the BBC for nine years. Following the noble Lord’s praise for Sky, I do not know whether this will mean that I attract criticism from him, but, as I say, I think that there are two separate matters here.

One is about documentaries or docusoaps, in which broadcasters follow police services and, in the course of filming or making the programmes, they capture footage on film of people doing things that are against the law. In those circumstances, the broadcasters tend to pixelate the images when they are played out. The broadcasters of that kind of imagery clearly have to comply with Ofcom’s broadcasting code and ensure that they do not broadcast images that might jeopardise any legal process that the police service might want to pursue in apprehending the person whom they have filmed. There is a separate issue that the noble Lord spoke more to in moving the amendment. It covers situations where news organisations, including the BBC, Sky, ITV and many others, broadcast CCTV footage that has been released to them by the police, usually in order for them to report on criminal activity and to broadcast the fact of that activity to the general public. In responding to the noble Lord, I will focus my comments on the second category of images rather than the first.

I start by saying that I wholeheartedly agree with the noble Lord that CCTV systems and images are an important investigative tool for the police. There is little point in investing in such systems if the police and others cannot make full use of the images when investigating offences captured on CCTV systems and prosecuting offenders. Where a suspect has yet to be identified and there is reason to believe that the release of CCTV footage will aid the police investigation of a crime and secure justice for the victim, our general approach is that we support images being made available to the public. There will be some cases where this may not be appropriate. However, the BBC programme “Crimewatch” is a great example of where CCTV footage of crimes has been broadcast and, as a result, the public have been able to provide vital information to the police.

We must be alive to the fact that at an early stage of an investigation, before anyone has been arrested for an alleged offence, any CCTV images would at best identify only one or more alleged offenders or wholly innocent persons. We need to be sensitive to such considerations, particularly where the persons visible on any CCTV footage appear to be under 18 and are therefore afforded particular protection within the criminal justice system. The position is different once a person has been arrested for an offence. In those circumstances, the Contempt of Court Act 1981 is engaged. This means that from the time of their arrest, a suspect is afforded a degree of protection in order to ensure that as the accused they have a fair trial.

All these considerations argue for a degree of constraint on the media in publishing personal details of suspects at the pre-charge stage. This is consistent with guidance issued by the Association of Chief Police Officers that sets out the limited circumstances in which police officers might divulge to the media the personal details of those suspected of, but not yet charged with, an offence. The ACPO guidance sets out the principles in this area, including the legal tests of necessity and proportionality, to help police forces make decisions about the release of images of suspects and defendants to the media.

I am grateful to the noble Lord for raising the issue. It is clearly relevant to the provisions of the Bill, given that one of our objectives is to promote the effective use of CCTV systems. As I said, it must be right that the police should be able to exploit CCTV images as part of their investigation of an offence. If the publication of such images has a role to play in helping identify suspects, the police should not be inhibited from placing them in the public domain. In doing so, they must have proper regard to their duties under data protection legislation and to the need to protect the rights of the accused, and they must have particular regard to the position of children. I hope that, having sparked the debate and listened to my responses, the noble Lord will withdraw his amendment.

[Lord Campbell-Savours]

My Lords, I am indebted to the noble Baroness for her reply to my amendment. We have had an early canter round a very interesting course. I feel sure that if we had not all been eagerly awaiting the amendment of the noble Lord, Lord Marlesford, there would have been far more contributors to the debate. On that basis, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Clause 38 : Judicial approval for directed surveillance and covert human intelligence sources

Amendment 33

Moved by

[Baroness Hamwee]

33: Clause 38, page 29, line 44, at end insert—
“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

[Baroness Hamwee]

Amendment 33 amends the provision dealing with the need for judicial approval in cases of directed surveillance and covert human intelligence sources in the work undertaken by environmental health officers dealing with noise. I moved this amendment in Grand Committee. I know that the Minister is sympathetic to people who suffer from noise disturbance, so I am trying it again, not just for that, but in order to pursue a couple of points. I should declare that I am a vice-president, one of many, of the Chartered Institute of Environmental Health.

In responding to the amendment in Grand Committee, the Minister referred to meetings between the institute and Defra and to work on revising the RIPA code of practice, but if surveillance is unlawful, which is what concerns the institute, the code cannot make it lawful. I am rather cantering through the points covered in that debate. I accept that most of what environmental health officers do in investigating and dealing with noise nuisance does not amount to covert surveillance requiring authorisation. The Minister said that the code would make it clear that,

“authorisation under RIPA is unlikely”—

I stress that word—

“to be necessary”.—[Official Report, 15/12/11; col. GC 357.]

Uncertainty over this is not helpful. The Minister referred to the right to privacy, but I do not believe that this is a matter of privacy—privacy is keeping a matter private after the fact—but is about obtaining information. She said that if noise—for instance, of an argument—is so loud that it can be heard outside a property, there can be no realistic expectation of privacy. However, as I understand it, private information is defined by RIPA according to its content, not its audibility. Indeed, individuals can have a right to privacy in respect of activity even in a public place.

If the local authority is to serve an abatement notice warning that monitoring may be carried out, it has been suggested that it cannot be covert, but whether surveillance is covert is a matter of fact in each instance. The Minister said that the code makes clear that authorisation is not required, but in fact the code states that a perpetrator is not normally to be regarded as having forfeited a right to privacy and that authorisation may not be necessary.

Coming back to those three words, “unlikely”, “normally” and “may”, can the Minister give me any further assurances? I beg to move.

21:45

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend. I was grateful to her for taking my call earlier today to discuss her amendment. Since speaking to her this afternoon and rereading the notes and advice that I have had on this amendment, I hope I can provide her with more assurance than I indicated earlier, but I will not prejudge that.

As I made clear in Committee, I fully share my noble friend’s concerns about the impact that intrusive noise can have, particularly when it comes from neighbouring properties. I share her concerns that in many cases noise monitoring would already fall outside the RIPA regime because there is not an expectation of privacy. However, in some cases it is possible that noise monitoring amounts to an intrusion of an individual’s expectations of privacy. In such cases it is right that steps are taken to ensure that any monitoring is both necessary and proportionate. The whole point of the RIPA safeguards of necessity and proportionality is that there needs to be an assessment on a case-by-case basis that takes into account the individual facts of the case.

RIPA ensures that public authority surveillance activity meets its obligations under Article 8 of the European Convention on Human Rights. Without a RIPA authorisation, a public authority that exceeds the bounds or intrudes quite significantly is at risk of an ECHR challenge. However, I share my noble friend’s view that many noise abatement investigations do not engage any private information and are therefore outside the scope of RIPA. I gave a few examples when we debated this issue in Committee; for example, the monitoring of loud music, alarms or machinery; if someone is having a row and it is causing inconvenience to other people they cannot be in a position to believe that that is private. There are occasions when obtaining a RIPA authorisation for noise abatement would clearly be superseded by the need for immediate action—for example, by the police—because the intervention is for a public order incident.

Home Office officials have been discussing these matters with members of the Chartered Institute of Environmental Health, Defra and London Councils. We have said that we cannot create a general exclusion for any noise abatement measurement or monitoring, especially if the steps taken to investigate it infringe privacy rights. However, I hope I can provide my noble friend with the assurance that she is seeking by saying that we will look again at the RIPA code of practice on surveillance to see whether we can make it clearer that in the circumstances that I have outlined—that is, where no private information is engaged or a where a person would normally be regarded as having forfeited any claim to privacy—a RIPA authorisation is unlikely to be required. I hope that that is sufficient to persuade my noble friend to withdraw her amendment.

[Baroness Hamwee]

My Lords, I thank my noble friend for having clearly spent quite some time on this since we spoke earlier this afternoon.

As my noble friend will know, a code cannot trump legislation but greater clarity may be of assistance. Certainly, I was with her much more this time on her response than previously. It may not satisfy the institute entirely but if the code can be made clearer and reduce hesitancy on the part of environmental health officers in using the powers that they have, that would certainly be a good thing. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Amendment 34

Moved by

[Baroness Hamwee]

34: After Clause 38, insert the following new Clause—
“Matters subject to legal privilegeInvestigatory powers: legal privilege
(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—
“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege.(8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—
“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.
(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(13) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.” (3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—
“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—
(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—
(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—
(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) or (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.”

[Baroness Hamwee]

My Lords, I beg to move Amendment 34, which has been prepared by the Bar Council. Any noble Lord who looked at the Marshalled List would have been surprised that anyone without parliamentary counsel experience could have come up with this, and indeed it was a former parliamentary counsel who drafted it. I take this opportunity to thank the noble Lord, Lord Henley, for the meeting he had with representatives of the Bar Council a few days ago.

The amendment is underlaid by the common-law right of a client and his lawyer—or indeed a lawyer and his client; it works both ways—to communicate privately. I do not think I need to emphasise the importance of this, nor can I overemphasise it. It is a fundamental human right and a major building block of our administration of justice. If a client feels that his communication might be disclosed and used against him, he will edit what he tells his lawyer, and his lawyer will inevitably be handicapped by that.

There is a statutory protection against the use of legally privileged communications when a client is in custody, but in 2009 in the case of Re McE, this House, when it was still sitting as a court, held, although not unanimously—the noble and learned Lord, Lord Phillips of Worth Matravers, dissented—that Part II of RIPA permits the covert surveillance of meetings between defendants and lawyers. This ruling applies to other covert investigation techniques: the interception of communications, the acquisition of communications data and the use of covert human intelligence sources. There is therefore a problem where instructions are taken outside a police station, such as a group of people at an environmental protest, or indeed when one meets any group of people, or any individual, outside particular premises. The ruling also applies outside criminal law when an individual brings a civil action against the state, and to think that the state itself could be listening into and using what he tells a lawyer reminds us of regimes that are very far from the model of what we wish to be in this country.

Following McE, orders were made that altered the authorisation provisions and revisions were made to the codes of practice, but in the view of the Bar Council these provide insufficient safeguards. The codes of practice provide for the violation of legal professional privilege only in “exceptional and compelling circumstances”, but the test contains no special protection for privileged material. For directed surveillance, such circumstances are said to arise only in cases where there is a threat to national security or to “life or limb”. The phrase “threat to life or limb” is not clear; it could extend to quite minor offences where physical injury has arisen from a lack of reasonable care or a breach of a duty that gives rise to strict liability.

The real difficulty is that these changes do not address the fundamental point that covert investigatory powers should not be used to target privileged communications. The orders, in any event, do not apply to the interception of communications and the acquisition of communications data. This amendment would protect legal professional privilege except where it is abused for criminal purposes.

The noble Baroness said in Grand Committee that no one could regard themselves as being beyond the law or immune from investigation or prosecution. I do not challenge that. Indeed, I share that view. Therefore the inequity exception, as it is known in the trade, is included, which provides that privilege does not attach to information that is held or to communications that were made in the furtherance of a criminal purpose. The proposed new clause would simply bring RIPA into line with other legislation. When RIPA was introduced, the issue of privilege was not debated at all, and the courts have been left to construe statutes. This is not a case of the courts having any basis other than an assumption of the construction, “Parliament must have intended”. I do not think that Parliament addressed its mind to it.

I have two further points. First, the noble Baroness mentioned the requirement of codes of practice that cases of legally privileged communications which are intercepted or retained, or are the subject of interception, should be reported to the Interception of Communications Commissioner. I take that point but it is after the event and does not meet the basic concern.

Secondly, the noble and learned Lord, Lord Scott of Foscote, queried whether the way in which the provision was drafted would give a wide power to the Secretary of State to pre-empt how the courts might deal with a criminal purpose. He pointed to the words “or otherwise”. The matter is most likely to arise on an application for authorisation but it could arise later in an investigation where the fruits of a covert operation tend to include lawyer-client communication, which would not attract the iniquity exception.

The Bar Council and I believe that the addition of the words:

“For the purposes of this section”,

in two places would confine regulations which are proposed to provide for determinations only for the purposes of the relevant section of RIPA and not be as extensive as the noble and learned Lord feared. I am grateful to him for pointing out the need for a little tweaking.

This is an issue of really important principle, which I appreciate I am bringing to the House late in the evening. Perhaps the exit of a number of noble Lords indicates that we are not going to go on to what they were staying for. I have no doubt made myself a bit unpopular therefore by this but nevertheless it is an important point of privilege.

[Lord Henley]

My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that.

Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further.

We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance.

This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage.

Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack.

22:00

I hasten to add that there is no suggestion that the lawyer is in any way involved in the crime or that the person has any intention of trying to involve his lawyer in it. Indeed, the lawyer may well be advising his client in a perfectly proper way and he may even be content for there to be surveillance of his office to assist with the gathering of that crucial information. The lawyer cannot of course waive the legal professional privilege; only the client can do that. What is needed, and what we have with the current regime and safeguards, is a way for surveillance of that conversation to be properly authorised so that it is in compliance with the European Convention on Human Rights and, importantly, so that the crucial information can be obtained. The examples I have given may seem a bit extreme, but we know that scenarios like this can and do happen. In these circumstances it is vital that, with safeguards in place, we are able to act to protect life.

My noble friend referred to the decision in the case of McE made by the former Judicial Committee of your Lordships’ House, which made it clear in 2009 that RIPA could be used to target conversations between a lawyer and his client as long as there were sufficient safeguards in place. As the noble and learned Lord, Lord Hope, noted in his judgment when referring to the passage of RIPA through Parliament:

“Parliament was clearly mindful throughout of core rights and interests and of the requirements of the European Convention on Human Rights against the background of which the statute was to be enacted. Neither article 6 nor article 8 imposes an absolute prohibition on covert surveillance of legal consultations, provided it is authorised by law and is proportionate”.

The effect of the judgment is that an enhanced authorisation process has to be followed for the authorisation of surveillance of legally privileged consultations. All authorisations are subject to prior external approval. In the case of intelligence agencies, this will be by the Secretary of State; for law enforcement, this will be by the surveillance commissioner. The statutory code of practice makes it clear that both the approving and authorising officers may authorise the use of surveillance only if they are satisfied that exceptional and compelling circumstances exist which make the authorisation necessary. Such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or to national security. The use of surveillance must be considered likely to provide the information needed to counter the threat. Importantly, any information obtained as a result of the surveillance can only be used to counter the threat—it cannot be used in criminal investigations or prosecutions.

We seem therefore to agree with the need to safeguard as far as possible the principle of legal professional privilege, but disagree about the circumstances where there can be surveillance of such conversations. This is a question of judgment and the Government’s view is that, with the correct application of existing enhanced safeguards, there are very occasionally circumstances where a conversation may properly be subject to legal privilege protection but where surveillance is necessary to save life and limb. The Government obviously have a duty to protect citizens, and I do not believe that the public would readily understand or have sympathy with why the law stood in the way of being able to act to protect people.

Before I sit down, I would I would like to take this opportunity to advise the House of a point that will be important for Third Reading. Since we are debating RIPA, we have also been giving further consideration to the amendment tabled in Committee by my noble friend Lord Selsdon which sought to exclude from criminal proceedings, save in exceptional circumstances, any evidence derived from covert surveillance that had not been authorised under RIPA. This is a complex area of the law and it remains to be seen whether further legislation is necessary. Were we to conclude that further primary legislation was appropriate, it is only right that I should flag up the possibility of a Third Reading amendment at this time.

Having gone through the more detailed response to the amendment of my noble friend, I hope that she will now feel able to withdraw it.

[Baroness Hamwee]

My Lords, I shall certainly do so. What the Minister has explained to the House is of enormous significance. Given the time, I shall confine myself to just one remark. He gave an assurance that there is a distinction between using information to counter a threat and using it as evidence for prosecutions, with the former being permissible and the latter not. I wonder whether in practice it is entirely easy to disentangle the two. The Minister has given me material to think about, as he will to others who are much more expert than I am on the technicalities. I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

House adjourned at 10.06 pm.