House of Commons

Monday 12th March 2012 Commons Chamber

Monday 12 March 2012

The House met at half-past Two o’clock

Prayers

Monday 12th March 2012 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Monday 12th March 2012 Commons Chamber

The Secretary of State was asked—

[Julian Sturdy (York Outer) (Con)]

1. What steps he is taking to help reduce the cost of council tax.

[The Secretary of State for Communities and Local Government (Mr Eric Pickles)]

Under the last Government, council tax more than doubled. This Government are working with councils to freeze council tax for two years. A recent survey by the Chartered Institute of Public Finance and Accountancy indicates that council tax bills this April will go up by only 0.3%. I would have preferred that amount to be zero, but it is a real-terms reduction for hard-working families and pensioners.

[Julian Sturdy]

I thank the Secretary of State for his answer. What does he make of City of York council’s decision to reject a £1.8 million grant from the Government, and instead to raise council tax needlessly instead by 2.9%, thus increasing financial pressures on York residents?

[Mr Pickles]

I would certainly be willing to take an away-day trip to York, if only to listen on the doorstep while a canvasser explains why getting an additional sum of £294,000 justifies rejecting a £1.8 million grant from the Government. This is clearly not in the interests of York; the council has not protected its council tax payers. I am afraid that, unlike the 300-odd authorities throughout the country that have taken the freeze, this council is going to find itself in a very difficult position.

[Ms Karen Buck (Westminster North) (Lab)]

What would the Secretary of State say to constituents of mine in Westminster such as the 90-year-old gentleman with glaucoma who is blind in one eye and unable to walk, and a gentleman I met last weekend with Parkinson’s disease, who have had their taxi cards removed by Westminster city council and correspondingly have to pay £40 for every single journey they make? As they point out, the amount for every single journey is twice the saving they make from the council tax freeze.

[Mr Pickles]

I do not know the precise circumstances of the hon. Lady’s constituents, but if she would care to write to me with the details, I would happily take up the matter with Westminster council.

[Rosie Cooper (West Lancashire) (Lab)]

2. If he will encourage local authorities to increase their use of local suppliers in the provision of goods and services.

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

It is clear that there is significant scope for major savings in local authority procurement from the £62 billion spent each year. By making these savings, we can enhance front-line services, save taxpayers’ money and help to pay off the deficit. To encourage that, we are cutting red tape to open up procurement, especially to small and medium-sized firms. While it is up to a local area to decide from whom to procure, local authorities clearly have significant spending power, which should be used to help drive local growth.

[Rosie Cooper]

Leeds city council has the charter for procuring community benefits, which encourages all current or potential council suppliers to commit to providing added benefit to the local community, particularly in disadvantaged parts of the city. What action will the Minister take to encourage local authorities to take up schemes such as that seen in Leeds to encourage buyers to use local businesses? That would certainly benefit the towns and villages in my area and businesses in West Lancashire.

[Robert Neill]

The Government have supported the local productivity programme, which has been developed by the local government sector, led by the Local Government Association. We are looking at ways to improve access to tenders and procurement, especially for small and medium-sized firms, including promoting greater use of the online contract finder tool, which is a potential benefit for local British firms.

[Mr James Gray (North Wiltshire) (Con)]

The supply of phonic books for Her Majesty’s Government is a 95% monopoly of the Oxford University Press and Pearson between them. Does the Minister agree that there would be positive merit in encouraging remaining companies such as Phonic Books Ltd in my constituency to be able to compete with those huge quasi-monopolies by physically seeking to assist them to do so?

[Robert Neill]

I agree with my hon. Friend. To that end, the Government have been cutting unnecessary procurement red tape—for example, by removing the pre-qualification questionnaires for procurements below £100,000, as I know those requirements have considerably discouraged small businesses from tendering. I hope that councils will follow that lead and will continue to look to other sizes of contracts to improve procurement.

[Roberta Blackman-Woods (City of Durham) (Lab)]

I was recently reading ConservativeHome, as one does. I noticed that the Secretary of State uses it to advise councils to make the best use of taxpayers’ money, so what assessment has his Department made of the amount by which council tax payers could benefit from increased local procurement, which could create local jobs and support local businesses?

[Robert Neill]

I congratulate the hon. Lady on her reading—I was about to say bedtime reading, but I do not know what time she looked at ConservativeHome, although I am sure that the experience was encouraging and enjoyable.

As I have said, we are working on a raft of schemes. We have introduced a new code of recommended practice on data transparency, we are introducing new checks and balances on procurement cards, we are working with the local government sector to encourage initiatives such as the Welland procurement unit in the east midlands, and our Spend Pro analysis can identify areas of comparative spend and areas for efficiencies and savings.

[Margot James (Stourbridge) (Con)]

3. What recent discussions he has had with the Secretary of State for Work and Pensions on direct payments to tenants for the housing element of universal credit.

[The Parliamentary Under-Secretary of State for Communities and Local Government (Andrew Stunell)]

We are working with the Department for Work and Pensions, local authorities and housing associations on direct payment demonstration projects, and developing a successful process for paying universal credit directly to tenants which will encourage tenants to manage their own budgets.

[Margot James]

There are 23,000 local authority-owned homes in my borough of Dudley, and the local authority is extremely concerned about the resources that will be required for the collection of payments once housing benefit is paid directly to tenants. Will my hon. Friend seek guidance from the Department for Work and Pensions on what help can be given to authorities?

[Andrew Stunell]

I can reassure my hon. Friend that the pilot projects are designed precisely to establish whether those concerns are justified or not. Members representing the five areas involved will have received a letter about the projects from the Department for Work and Pensions. Paying tenants directly eases the transition into work, and is already happening in most cases in the private rented sector.

[Stephen Timms (East Ham) (Lab)]

I believe that some 20,000 local authority employees are currently involved in the delivery of housing benefit. What will happen to them when housing benefit is absorbed into universal credit in 18 months’ time?

[Andrew Stunell]

In October 2013 a start will be made on the transfer with new claimants, and there will then be a progressive integration until 2017. There will be a series of steps as claimants move to universal credit. The demonstration projects will assess all aspects of the delivery of the scheme, and will be reported on to the House in due course.

[Mr David Ward (Bradford East) (LD)]

Is the Minister aware that registered social landlords are already threatened with an increase in borrowing costs as a result of arrears and the cost of collection of the direct payments?

[Andrew Stunell]

As my hon. Friend will know, housing benefit expenditure has been rising rapidly, from £14 billion 10 years ago to £21 billion now. The reform of that benefit is included in the social security measures that have just been approved by the House.

[Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)]

It is not just Dudley borough council and the black country that are concerned. So is Birmingham city council, which is the largest authority in Europe. Given that the Minister is running pilots, can he tell us how he will define success?

[Andrew Stunell]

The pilots are taking place in five different local authorities, including both urban and rural authorities. The purpose of the demonstrations is to ensure that we get the mechanisms, support and financial tools right, so that landlords’ financial position is protected and tenants receive the right support.

[Rehman Chishti (Gillingham and Rainham) (Con)]

4. What plans he has to increase the powers of local authorities to tackle unauthorised development.

[Gavin Williamson (South Staffordshire) (Con)]

7. What plans he has to increase the powers of local authorities to tackle unauthorised development.

[Mr Marcus Jones (Nuneaton) (Con)]

11. What plans he has to increase the powers of local authorities to tackle unauthorised development.

[The Secretary of State for Communities and Local Government (Mr Eric Pickles)]

The Government take the problem of unauthorised development very seriously. Strong powers already exist to enable local planning authorities to take action. Provisions in the Localism Act 2011 will strengthen local planning authorities’ powers to tackle the issue, and will come into force on 6 April this year.

[Rehman Chishti]

I thank the Secretary of State for that answer. Planning appeals are costly and bureaucratic, which does not encourage the local planning authority to pursue breaches, and the process frustrates both the community and elected representatives alike. What steps is the Secretary of State taking to address this problem?

[Mr Pickles]

The new Localism Act makes five substantial changes. The first, and most obvious, is that it will no longer be possible to appeal an enforcement and make a retrospective planning application at the same time. Secondly, the issue of permission being granted when there has been concealment beyond the normal period will be addressed, so that, for instance, if somebody builds a bungalow behind a haystack, the fact that it has been there for longer than three years will make no difference in respect of enforcement. We will also be able to offer letters of comfort to landowners who are not involved in unauthorised action, and we are increasing penalties—and we are increasing penalties with regard to fly-posting and unauthorised advertising, too.

[Gavin Williamson]

We in South Staffordshire have to deal with the problem of illegal Gypsy and Traveller sites. Can my right hon. Friend assure the House that these powers will help local councils such as mine deal more effectively and quickly with such sites?

[Mr Pickles]

Certainly, these powers will help, along with the new planning guidance on Gypsy and Traveller sites, but it is important to understand that the new measures will help not only the planning authority, but Gypsies and Travellers, the vast majority of whom are on legal sites, obey the law and do their best to integrate with their neighbours. Unfortunately, however, a small minority have abused the system, and I get complaints about that from both sides of the House. From 6 April, these new powers will help, and it is to be hoped that we can once again have a much more level playing field.

[Mr Marcus Jones]

I have always believed in the right to protest, but does my right hon. Friend agree that nobody should have the right to set up permanent squats, such as those we have seen in Parliament square and at St Paul’s over recent years?

[Mr Pickles]

My hon. Friend makes a very reasonable point. As he will be aware, we recently amended legislation to give councils stronger powers to use byelaws to tackle tent encampments such as those that blighted Parliament square. I am engaged in discussions with my right hon. Friend the Home Secretary and am actively looking into other ways in which councils and police practice and powers can be strengthened.

[Kerry McCarthy (Bristol East) (Lab)]

In Bristol, the problem is not so much that the planning department lacks the powers; rather, it is that it lacks the willpower to take enforcement action. Many constituents come to me utterly frustrated that dwelling houses are being built in people’s back gardens, clearly by flaunting the planning guidance. What can be done to address this problem?

[Mr Pickles]

The hon. Lady makes a very reasonable point about these so-called beds in sheds. My right hon. Friend the Minister for Housing and Local Government recently had a meeting with a number of local authorities to look into ways in which the problem might be effectively dealt with. The hon. Lady will be pleased to know that there are more than adequate existing powers to deal with it, and as she rightly points out, the issue has been a lack of willpower. One authority—I shall not name it—has, frankly, let this get out of hand in a two-year process, so that the problem is now very difficult indeed to deal with.

[Tristram Hunt (Stoke-on-Trent Central) (Lab)]

Can the Secretary of State update the House on when we will receive version two of the national planning policy framework, so that we in this Chamber can enjoy the massive, copper-bottomed 180° U-turn at the same time as the press?

[Mr Pickles]

The hon. Gentleman may find himself spinning alone on that—but the answer is very soon.

[Mr Andrew Love (Edmonton) (Lab/Co-op)]

What comfort can the Secretary of State give my constituents, who, like those in Bristol, are affected by a blizzard of small extensions that the local authority never seems to be able to deal with? Surely there must be powers at the centre to get local authorities to take this matter seriously?

[Mr Pickles]

The hon. Member for Bristol East (Kerry McCarthy) was referring to the new phenomenon of sheds in people’s back gardens, whereby people are often paying over the odds for substandard accommodation in very cramped conditions, and are largely being exploited by their landlords. There is permitted development for some extensions. If the hon. Member for Edmonton (Mr Love) feels that there are developments in his constituency that exceed what is permitted, perhaps we could have a word about them outside the Chamber.

[Mr Jim Cunningham (Coventry South) (Lab)]

5. What assessment he has made of the (a) affordability, (b) length of tenure and (c) standards of housing afforded to tenants in the private rented sector.

[Andrew Gwynne (Denton and Reddish) (Lab)]

10. What assessment he has made of the (a) affordability, (b) length of tenure and (c) standards of housing afforded to tenants in the private rented sector.

[The Minister for Housing and Local Government (Grant Shapps)]

The latest report of the English housing survey was published on 9 February. It shows that rents in the private sector have reduced in real terms, that standards have improved and that only 8% of tenancies are terminated before the tenants so choose.

[Mr Cunningham]

Leaving aside the report, may I ask the Minister what he is doing to drive up standards in the private sector, particularly in relation to rogue landlords?

[Grant Shapps]

As was indicated in the previous exchange with my right hon. Friend the Secretary of State, I have just held a meeting with the interested parties about rogue landlords. They are a matter of considerable concern, and I will be pulling together all the powers and issuing a booklet on that shortly. The hon. Gentleman rightly asks about the standards, and I can tell him that the number of non-decent homes in the private rented sector has fallen from 47% in 2006 to 37%.

[Andrew Gwynne]

Given what the Minister has just said, why do his Government seem intent on removing further protections from private tenants, who, in my constituency in particular, are at the mercy of rogue landlords? Should he not be protecting those hard-working tenants and driving up standards in the private rented sector?

[Grant Shapps]

Although he speaks with great passion, the hon. Gentleman is fundamentally wrong, because I am not removing any of the protections from landlords or tenants in the private rented sector. It is worth remembering that actual measures consistently show that people are happier in the private rented sector than in the social sector, which might surprise him. I can also tell him that 90% of tenancies are ended by the tenant, not by the landlord.

[Jack Dromey (Birmingham, Erdington) (Lab)]

Both the Housing Minister and the Prime Minister, out of touch with reality, have asserted on the Floor of the House of Commons that rents are falling in the private rented sector. An analysis conducted by the House of Commons Library reveals that in 90% of local authorities in England, in all nine regions, rents are rising or staying the same. Will the Housing Minister now admit to the 1.1 million families struggling to pay their rent that he got it wrong?

[Grant Shapps]

The LSL survey shows that in the three months through to January rents actually fell, but we do not have to believe LSL—[Interruption.] There was rightly some scepticism there—LSL measures only buy to let—so let us instead look at the absolutely authoritative figures recently produced by the English housing survey, which show that in real terms rents have fallen in the past year.

[Kate Green (Stretford and Urmston) (Lab)]

6. What assessment he has made of the effect of council tax benefit localisation on families in Stretford and Urmston constituency.

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

An impact assessment is on my Department’s website. These reforms will create stronger incentives for councils to get people back into work and will help to pay off the budget deficit we inherited from the previous Administration. This Government are committed to supporting the most vulnerable in society. We have made it clear that pensioners should be protected and that any changes should help to support work incentives.

[Kate Green]

I am grateful to the Minister for that reply. However, the budget for council tax benefit is being cut by 10% from 2013-14, so how can he guarantee that every hour of work will pay for the working poor in my constituency and that they will not be impacted by this budget cut?

[Robert Neill]

I have made it clear that we intend to protect the most vulnerable, but, equally, the hon. Lady has to recognise that spending on council tax benefit more than doubled between 1997 and 2010. That needs to be reduced as part of the strategy to lower the deficit that we inherited, in order to get the country back on track. We intend to do that in a proportionate and measured fashion, to protect the most vulnerable.

[Helen Jones (Warrington North) (Lab)]

Is the Minister prepared to apologise to the more than 10,000 people in the local authority area of my hon. Friend the Member for Stretford and Urmston (Kate Green), many of whom are families with children, whose council tax will rise as a direct result of his policy? Given that families in Stretford and Urmston will, like other families, lose an average of £580 a year as a result of changes to be introduced in April, and that, scandalously, 930 adults in that constituency alone risk losing all their tax credits if they cannot find extra hours of work, is it not about time the Government abandoned this tax increase for the poorest families, instead of obsessing about cutting tax for those on more than £150,000 a year?

[Robert Neill]

The apology should come from those who created the record deficit in the first place. The hon. Lady might also like to apologise for the inconsistency in standing at the last general election on a manifesto that promised to cut housing benefit when she says nothing now about how she would make reductions and nothing about how one can reform housing benefit without reforming council tax benefit, which goes hand in hand with it.

[Mr Clive Betts (Sheffield South East) (Lab)]

rose—

[Mr Speaker]

Order. I point out to the Chair of the Select Committee that the question relates exclusively to Stretford and Urmston, from which Sheffield South East is a little distant. The hon. Gentleman is an experienced Member and I am sure that he will tailor his question accordingly.

[Mr Betts]

I am sure that the Minister will be aware that his proposals on council tax benefits potentially affect Stretford and Urmston and other constituencies up and down the country. The Minister is aware that Capita wrote to local authorities on 12 January, saying it had real concerns about its ability to deliver IT systems in time to meet the changes proposed for April next year. Is the Minister not aware that authorities could end up with a real risk of system failure, affecting tens of thousands of low-income families? Is not the real answer to delay these measures for at least 12 months?

[Robert Neill]

I have in front of me the letter that Capita sent to all local authorities in the country, and it points out that the reforms are deliverable if we can bring forward the regulations and detailed schemes in time. To that end, we have set up an officer-level working group to discuss these matters with officials from the local government sector.

[Graham Jones (Hyndburn) (Lab)]

8. What assessment he has made of the effect of the number of properties in the private rented sector on young people attempting to purchase a home.

[The Minister for Housing and Local Government (Grant Shapps)]

In 2011, in terms of value, buy-to-let mortgages accounted for just 8% of total loans for home purchases. The biggest barrier to home ownership for many young people is not that, but the need to raise a deposit. That is why I know that the hon. Gentleman will welcome the NewBuy scheme, which we launched this morning.

[Graham Jones]

Obviously, I am aware that over the weekend the Government announced the home buy scheme for new build, which is a shadow of the sub-prime lending that went on previously, so I advise caution. The private rented sector, however, has added about 6% to the value of properties. Does the Minister agree that the issue is rising house prices and the cost of housing, not the availability of mortgages?

[Grant Shapps]

Just to clarify one point, sub-prime lending happened when people who could not afford to pay a mortgage back were lent money, sometimes as much as 120% of the value of the property. That is nothing to do with today’s NewBuy scheme. I know that the hon. Gentleman takes a keen interest in the private rented sector in particular. He makes a lot of very good and serious points about it and I can inform him that this Friday I intend to come and see him in his constituency to see the problems for myself.

[Chris Williamson (Derby North) (Lab)]

I wonder what will shake the Housing Minister out of his complacency. Surveys show that 90% of private sector tenants would prefer to be living under another form of tenure, but his policies are trapping more and more people in private rented accommodation, paying ever-increasing rents. Despite his rhetoric, the Housing Minister is failing those tenants and failing to achieve his claims that this Government would build more homes than Labour achieved. When will he get a grip on this housing crisis and stop making empty announcements that fail to live up to expectations?

[Grant Shapps]

I have certainly been shaken out of any sense of complacency by that question, given that it came from a member of a party under whose government we saw house building crash to its lowest level since the 1920s. I can report to the House this afternoon that in the past year alone house building starts in England went up by 25% compared with those in 2009.

[Peter Aldous (Waveney) (Con)]

9. What steps he is taking to promote the refurbishment of empty and vacant homes.

[Stephen Gilbert (St Austell and Newquay) (LD)]

12. What plans he has to bring empty homes back into use.

[The Parliamentary Under-Secretary of State for Communities and Local Government (Andrew Stunell)]

Last week we announced £70 million of funding that will bring more than 5,600 homes back into use as affordable housing. That is part of our wider strategy for bringing empty homes back into use, which was set out in the Government’s housing strategy for England last autumn.

[Peter Aldous]

I am grateful to the Minister for that answer. The housing department of Waveney district council is doing great work with limited resources, working with the private sector to bring empty homes back into occupation. Will my hon. Friend meet the department and me to find out more about that scheme with a view to its being rolled out across the country?

[Andrew Stunell]

According to the reports from Waveney district council to the Department, it currently has 983 long-term empty homes, so it certainly has work to do. I would be delighted to meet council representatives in due course to see what they are doing. I encourage every local authority to take full advantage of the new homes bonus that is available for bringing empty homes back into use and of the funding streams of £70 million and a further £50 million that we have announced, details of which will be announced shortly.

[Stephen Gilbert]

Although I welcome the £120 million that my hon. Friend has just mentioned, he will know that there are 10,000 empty properties in Cornwall, 40% of which have been empty for more than six months. Will he meet me and a representative of Cornwall council to make sure that local and national Government can work together to tackle this scandal in Cornwall?

[Andrew Stunell]

It looks as though I am in for a few journeys to different corners of the country. I would be delighted to go to Cornwall—or for the hon. Gentleman to bring representatives here. Cornwall has 3,800 long-term empty homes and I very much hope that Cornwall council will take advantage of the incentives that we are offering and that we propose to offer through the empty homes premium.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

Your Homes Newcastle tells me that of the 4,000 properties standing empty across the city, 99% are in the private sector. Private landlords often prefer to let them stand empty rather than let them to local families at lower rates than they have demanded from students. Constituents raise this with me all the time; how do I explain to them why the Government have decided to extend to two years the period before which local authorities can take action?

[Andrew Stunell]

The system for empty dwellings management orders remains in place and they can be brought into effect after two years, but there has been limited use of them so far. However, there are other incentives and penalties that we believe will be more effective more quickly. There is certainly an incentive for local authorities to work hard to bring empty homes into use because they will get a new homes bonus for that. If the consultation we are carrying out moves ahead in the right direction, the empty homes premium will be a strong incentive for home owners to bring their homes into use rather than paying that premium.

[Andrew Bridgen (North West Leicestershire) (Con)]

13. What steps his Department is taking to support local high streets.

[Simon Hart (Carmarthen West and South Pembrokeshire) (Con)]

14. What steps his Department is taking to support local high streets.

[The Secretary of State for Communities and Local Government (Mr Eric Pickles)]

The independent Portas review covered many issues affecting high streets. We will publish our response in the spring, but in the meantime we have introduced measures to support high streets through business rate relief, and local authorities have new powers to levy business rate discounts.

[Andrew Bridgen]

As in many town centres across the country, retailers in Coalville in my constituency have struggled in recent years to compete with out-of-town shopping centres. To tackle that decline the North West Leicestershire chamber of commerce has been established to breathe new life into the town. Does my right hon. Friend have any advice or help from central Government for such groups to aid them in their worthy task?

[Mr Pickles]

That is an excellent undertaking. We sometimes forget that shopping centres are what makes home and are what communities tend to gather around. We have set up a competition to select pilot areas to bring new life into town centres and I hope that my hon. Friend’s authority will apply.

[Simon Hart]

Tenby and Pembroke in my constituency are absolutely critical to the economic recovery in the area but do not always have access to the Government initiatives that are available in England, particularly the Portas pilots. Is the Minister working with the Welsh Assembly to make sure that Welsh high streets are not left behind English high streets?

[Mr Pickles]

Yes, indeed we are working with the Welsh Assembly and there is a reasonable indication that the Welsh authorities might take up the scheme.

[Mr David Lammy (Tottenham) (Lab)]

The Secretary of State will recognise that Mary Portas recommended changing the planning use category for betting shops. There is a mini-Las Vegas appearing across our cities, with teenagers ending up in our betting shops. Will the right hon. Gentleman take the opportunity to do something about it?

[Mr Pickles]

I am grateful to the right hon. Gentleman. We had an opportunity to walk down the high street together, where he showed me the problem. We are taking action. We are currently consulting on user class and I hope he will take the opportunity to make a powerful case.

[Ann Coffey (Stockport) (Lab)]

Stockport is bidding to become one of the Portas pilots. I am sure the Secretary of State will agree that, with its ancient market and other historic heritage sites, it is uniquely placed to develop a new offer to shoppers, so may I urge him to give his fullest consideration to Stockport’s bid?

[Mr Pickles]

Stockport is indeed close to my heart. It is the very gem of the north-west and I hope it puts up a very good bid, as nothing would give me greater pleasure than to grant that status to this magnificent town.

[Duncan Hames (Chippenham) (LD)]

The Minister can also expect an enthusiastic bid to be a Portas pilot from Chippenham in my constituency. In order to maintain the creative momentum from the Portas review, what plans does he have to reinvest in town centres and high streets more of the business rates that they earn?

[Mr Pickles]

Chippenham is the apple of my eye, a wonderful town. My hon. Friend makes a reasonable point. Although the Portas review will help, we are giving local authorities the chance to be in the driving seat, to see that where they generate income they will be able to apply that locally. Increasingly, the Government have demonstrated localism, not just by words but by deeds, by shifting the power and particularly by shifting the finance closer to the people.

[Huw Irranca-Davies (Ogmore) (Lab)]

15. What estimate he has made of the number of new homes which will be built in 2012.

[The Parliamentary Under-Secretary of State for Communities and Local Government (Andrew Stunell)]

The Government do not make forecasts of house building, but we look carefully at what has happened in the past. In 2007 there were 178,000 housing starts. By 2009, the last full year of the previous Government, that had crashed to 78,340. In 2011, the first full year of the coalition Government, it had risen to 98,250—a rise of 25%.

[Huw Irranca-Davies]

I thank the Minister for that array of facts, but the Housing Minister said that the gold standard by which this Government would be judged was building more houses than Labour, yet, according to the recorded figures, in the first 18 months of this Government new housing completions are down 11% compared with the last 18 months of the Labour Government. Has the Minister devalued his own gold standard?

[Andrew Stunell]

In 2011 the figure included 1,500 local authority starts. Interestingly, in 2009 there were only 150 local authority housing starts. Since September the Homes and Communities Agency has completed agreements on 112 social and affordable housing projects worth £1.6 billion. The first of the homes will start on site in April.

[Mr Nick Raynsford (Greenwich and Woolwich) (Lab)]

16. What assessment he has made of the difference between the number of (a) new homes being built and (b) units qualifying for the new homes bonus; and if he will make a statement. [R]

[The Minister for Housing and Local Government (Grant Shapps)]

The new homes bonus is calculated in respect of net additions to the effective housing stock, including new build, conversions and empty homes brought back into use.

[Mr Raynsford]

I draw attention to my interests in the register. I am glad the Minister is beginning to look at the discrepancy in his figures. According to the written answer he gave me on 29 February, in nine local authority areas in England the number of homes qualifying in 2011 for the affordable housing component of the new homes bonus exceeded the total number of homes for which new homes bonus was awarded. As this is clearly total nonsense, will the Minister explain what is going on? Were his statisticians having an off day, or is this another case of the Government not having a clue what they are doing?

[Grant Shapps]

Unless the right hon. Gentleman is accusing local authorities of being misleading in the paperwork they return, the new homes bonus must surely be, through the council tax base form, the single most accurate way of knowing how many new dwellings there are in this country. I know that he insists that it is something to do with D to H band homes being deregistered and then reregistered as smaller homes, so I have checked the figures and can tell him that they have been falling; the number of deregistrations has gone from 19,000 to 16,000 to 15,000-plus in each of the past three years, categorically disproving his theory once and for all.

[Mr Rob Wilson (Reading East) (Con)]

17. What plans he has to promote the right to buy for tenants of social housing.

[The Minister for Housing and Local Government (Grant Shapps)]

I have today announced that we will increase the maximum right-to-buy discount cap for tenants to £75,000 across England from 2 April this year, subject to parliamentary approval. The Government are on the side of those who aspire to own their own homes.

[Mr Wilson]

The previous shadow Secretary of State slammed home ownership as “the English disease”, which is probably one of the reasons right-to-buy sales fell significantly under the previous Government. Does my right hon. Friend agree that home ownership, whether stimulated by the NewBuy guarantee or the right to buy, is not a disease but something that fosters pride and aspiration in our communities?

[Grant Shapps]

My hon. Friend is absolutely right to explain that the right to buy was savagely cut under the previous Administration, to the point where very few sales went through each year. Today, the coalition Government are reinvigorating and rebooting the right to buy, which will now help up to 100,000 people purchase their own home, with discounts of up to £75,000, and with the money being used to replace those sold with new homes on a one-for-one basis. That, together with the NewBuy guarantee, will ensure that a further 100,000 people will be able to buy their own home. We are on the side of aspirant people who wish to buy the roof over their heads.

[Alison Seabeck (Plymouth, Moor View) (Lab)]

Will the Minister explain and clarify his recent announcement on the £75,000 cap? He spoke today of replacement on a one-for-one basis. Does that mean that he does not mean like-for-like replacement in the same area?

[Grant Shapps]

Where local authorities can provide the new homes in the same area, we will certainly look to keep the money locally and build in the area. The hon. Lady, as a previous shadow housing Minister—one of the eight I have faced—knows that the money will be used for the affordable rent programme, which will enable us to build 170,000 affordable homes for rent, and this will give us another 100,000 on top of that—far more than the previous Administration built over 13 years.

[Mr Ward]

rose—

[Mr Speaker]

Order. The hon. Gentleman has already asked a question. He cannot have forgotten the fact, because I certainly have not.

[Neil Carmichael (Stroud) (Con)]

18. What steps he has taken to encourage local authorities to promote business and economic growth.

[The Secretary of State for Communities and Local Government (Mr Eric Pickles)]

Local authorities have a key role in supporting local economic growth and promoting business in their areas. We have ensured that local places will receive the benefits of growth with the retention of business rates from April 2013. We will also pay £432 million to local authorities through the new homes bonus in 2012-13. We have also established 39 local enterprise partnerships, in which local authorities work with businesses to promote economic growth.

[Neil Carmichael]

I thank the Secretary of State for that encouraging set of policies. Does he agree that local authorities must make planning decisions connected with business development quickly, and that they should be underpinned by rigorous and timely economic analysis?

[Mr Pickles]

My hon. Friend makes a very reasonable point. Local authorities will now be able to apply the proceeds of that growth, so their local populations will expect them to make timely decisions. Now that power has moved closer to local authorities, they have much greater responsibility to deliver these decisions on time.

[Bill Esterson (Sefton Central) (Lab)]

The Mary Portas review will help with business growth. In my constituency, Formby has a parish council and Maghull has a town council. Will the Secretary of State confirm whether parish and town councils will qualify as accountable bodies for funding bids under the Portas review, or will the bids have to go through the borough or district councils?

[Mr Pickles]

I am afraid to say that, despite Formby being the apple of my eye and a wonderful place to invest, the process will be at borough level.

[Henry Smith (Crawley) (Con)]

20. What plans he has to tackle the abuse of social housing tenancies.

[The Minister for Housing and Local Government (Grant Shapps)]

We have set out proposals to give social landlords the tools to identify and recover properties that have been subject to fraudulent activity via sub-letting.

[Henry Smith]

I am grateful to my right hon. Friend for his answer. What support can his Department give to local authorities to stop the abusive activity of illegal sub-letting and of those who over-occupy their social tenancy homes, perhaps with friends or family?

[Grant Shapps]

My hon. Friend is absolutely right to point to the scale of the problem, which is enormous, perhaps a multi-billion pound per annum scandal, and this Government are absolutely determined to crack down on it. I introduced a consultation on sub-letting, stating that our preferred option is to criminalise the activity. We intend to do exactly what is outlined in the consultation and, in doing so, to end the scandal that means that such homes do not go to the people who rightly need them.

[Nigel Adams (Selby and Ainsty) (Con)]

21. What guidance his Department has issued to the Planning Inspectorate on planning appeals concerning onshore wind farms.

[The Minister of State, Department for Communities and Local Government (Greg Clark)]

The Planning Inspectorate has received the same advice as local authorities: the Government’s commitment to abolish the regional spatial strategies, including the targets for renewable energy, can be taken into account as a material consideration in planning decisions.

[Nigel Adams]

Has the Planning Inspectorate been instructed to take into account the views of local residents, campaign groups and communities during the appeal process?

[Greg Clark]

As I suggested, the Localism Act 2011 abolishes top-down imposition and releases local communities to have their say, and with the new planning framework it will be unambiguously clear that it is local communities that do things their way.

[John Pugh (Southport) (LD)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Communities and Local Government (Mr Eric Pickles)]

Last week we announced that the abolition of the Audit Commission will save councils £250 million over the next five years in lower audit fees, so cutting quangos does save money; we have finally abolished Labour’s ports tax, which threatened to scupper England’s export trade, so cutting taxes saves jobs; and, finally, we have welcomed more than 3,500 applications so far for diamond jubilee street parties, promoting our guide to organising a street party, so it shows that cutting red tape allows more bunting to be put up.

[John Pugh]

I thank the Minister for that welcome news, but as part of his duties as Secretary of State will he defend the right of Christian local authority workers discreetly to wear crosses or crucifixes at work, just as he would I hope defend the right of Sikhs to wear the turban, given a pending European judgment?

[Mr Pickles]

It is certainly my view that, provided any object does not get in the way of someone doing their job, a discreet display of their religion is something that we should welcome.

[Hilary Benn (Leeds Central) (Lab)]

Given the great public interest in the national planning policy framework, we would all like to know which construction and property companies the Secretary of State and Communities and Local Government Ministers have met in the past few months, especially as the Electoral Commission revealed that firms in the sector gave just over £500,000 to the Conservative party between July and December last year. The public unfortunately cannot find out that information because no details of meetings between CLG Ministers and others have been published since June 2011. May I ask the Secretary of State, who is responsible for publication, why that is?

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

All matters will be published in due course. My right hon. Friend the Member for Tunbridge Wells (Greg Clark), the Minister responsible for planning and decentralisation, made clear the persons who are members of the practitioners group and with whom we openly consulted. Nothing is hidden, and I am sorry that the right hon. Gentleman chooses to bark up such a completely fictitious tree.

[Hilary Benn]

That will not really do, and I am sorry that the Secretary of State has once again ducked answering a question, because he is very keen to lecture people on transparency but, it seems, not so keen on it himself. The Housing Minister promised the House a month ago that the information was about to appear, but as of midday today—nine months on from the previous disclosure—there was still no sign of it on the Department’s website, even though the ministerial code clearly states that such information must be published “at least quarterly”. When is the Secretary of State going to start practising what he preaches, especially on something as important as the future of our towns and countryside?

[Robert Neill]

I have consulted my right hon. Friend the Secretary of State, and information on the matter will be published very shortly. I point out that this Department was the first to publish online all spend over £500, so our record bears comparison with anyone’s.

[John Stevenson (Carlisle) (Con)]

T2. The Department is currently consulting on changes to building regulations. In order to help to reduce energy costs for home owners and to create a proper market in renewables, will the Minister consider making solar panels compulsory for all new builds?

[The Parliamentary Under-Secretary of State for Communities and Local Government (Andrew Stunell)]

I share my hon. Friend’s desire to make sure that homes are more energy-efficient and that energy bills fall. We have already raised building standards by 25%, and we are consulting on the next step; I hope that he will contribute to the consultation. If we implement the proposals in the consultation, we will need people to use renewable energy sources in building schemes, and that will go a long way towards what he is seeking to achieve.

[Mr David Crausby (Bolton North East) (Lab)]

We all want house building to get moving again and first-time buyers to get on to the housing ladder, but is it not true that 95%, and even higher, mortgages were what went wrong with the housing market in the first place? Will not any attempt artificially to prop up house building with Government subsidy come back and bite us at some point?

[The Minister for Housing and Local Government (Grant Shapps)]

As I said earlier, the problem with the housing market was sub-prime lending, or lending to people who could not afford to pay back the mortgages, not 95% mortgages, which operated perfectly well in this country for many decades. The criteria for lending are now much stricter, and nobody will get a mortgage who is not properly able to pay it, not only with today’s low interest rates but with interest rates that are clearly likely to rise at some point in future.

[Priti Patel (Witham) (Con)]

T3. With the London elections on the horizon, should Londoners elect a Mayor who has frozen the Greater London authority’s share of council tax, keeping more money in people’s pockets, or a man who is more concerned with finding ways of dodging paying his own taxes while increasing everybody else’s taxes?

[Mr Pickles]

Personally, I am backing Boris. I was very shocked to find out about Ken Livingstone’s tax arrangements. It seems very odd for somebody who is standing for Mayor to have a way of avoiding paying tax. In particular, I hope that he has a reasonable explanation about the two people he employed and why those matters were not properly reported to the Electoral Commission.

[Emma Reynolds (Wolverhampton North East) (Lab)]

T9. Some of the poorest and most vulnerable people in Wolverhampton live in appalling conditions in the private rented sector. Self-regulation is not working, and the Housing Minister’s booklet is unlikely to change anything. When are the Government going to recognise that this sector needs regulating, with, in particular, a compulsory national register of landlords?

[Grant Shapps]

The hon. Lady is absolutely right to be concerned about the conditions that people live in, and I share that concern very strongly. It is interesting that Labour never introduced a compulsory register in 13 years. It is also interesting that when I came into office and asked to see the sum of work that had been done by my predecessors, the answer was none. There are good reasons why private registers would not work. There are 1.5 million landlords, many of whom are, for example, private individuals letting out one or two rooms. It would be an unworkable system requiring an enormous quango. The answer is to use the existing legislation properly. I will help to advise the hon. Lady’s local authority on precisely how to do that if that is helpful.

[Tony Baldry (Banbury) (Con)]

T4. Since the reign of Mary Tudor and throughout the vicissitudes of history, Banbury council has started all its meetings with prayer and a recitation of the 84th Psalm. Will my right hon. Friend confirm that the general power of competence he has granted local councils will enable those that wish to continue to start their meetings with prayer to do so?

[Mr Pickles]

My hon. Friend is a very distinguished man, and perhaps only someone of his greatly distinguished nature could regard the reign of Mary Tudor as topical. Nevertheless, he makes a good point. We enjoy the power of prayer in this Chamber under the Bill of Rights 1688, and what is good enough for us should be good enough for councils. That is why I was pleased to introduce the general power of competence. The authorities that do not qualify will make arrangements very soon.

[Hazel Blears (Salford and Eccles) (Lab)]

I believe that the Under-Secretary of State for Communities and Local Government, the hon. Member for Bromley and Chislehurst (Robert Neill), the Minister with responsibility for fire and rescue services, is an eminently reasonable man. In the Adjournment debate last week, he will have heard the strength of feeling expressed on behalf of metropolitan fire and rescue authorities. The grant for Greater Manchester has been cut by 12.5%, whereas the grant for Cheshire has increased by 2%, when Greater Manchester has more fires, more deprivation and more poverty. I believe that settlement to be grossly unfair. Will the Minister, as a reasonable man, change the settlement for years three and four to protect people in metropolitan areas?

[Robert Neill]

It is impossible for me to approach the right hon. Lady other than in a spirit of reason. I gently point out to her that the funding results come from the application of a formula that essentially we inherited from the previous Government. It assigns significantly more money to metropolitan fire and rescue authorities than to those in the counties, and we have adjusted it to give greater weight to density, which advantages urban areas. We are looking to make further reforms when we bring in business rate retention, which will fund all fire authorities.

[Julian Smith (Skipton and Ripon) (Con)]

T5. Communities across north Yorkshire are being hassled, bullied and, in some cases, bribed by wind developers that are carrying out scoping exercises. Following the question from my hon. Friend the Member for Selby and Ainsty (Nigel Adams), will the Minister confirm that the revised national planning policy framework will give communities, such as those in north Yorkshire, the absolute final say on where wind farms should be situated?

[The Minister of State, Department for Communities and Local Government (Greg Clark)]

The problem at the moment is that there is imposition from the regional strategies. We are getting rid of that. We take the view that if communities are involved in decisions, there can be a far better outcome than if planning decisions descend on them from above.

[Jim Sheridan (Paisley and Renfrewshire North) (Lab)]

Erskine is a charitable organisation in my constituency that provides work for and looks after disabled ex-service personnel. Unfortunately, due to the current financial difficulties, it is struggling to compete with the private sector. Will the Secretary of State meet representatives from Erskine to explore how local or central government procurement processes could be used to help these poor soldiers?

[Mr Pickles]

I will certainly organise meetings for the hon. Gentleman with the Local Government Association. Of course, 80% of charities receive no money from the state. I have noticed that the top five authorities for extending their funding for charities are Conservative authorities and that no Labour authority appears in the top 20. [Interruption.] I say to the hon. Gentleman that if they are not looking for money, the meeting will be even quicker.

[Jonathan Lord (Woking) (Con)]

T6. I welcome what the Secretary of State said about unauthorised development by Travellers on green-belt land. May I press him a little further? In the village of Normandy and the surrounding area in my constituency, a spate of temporary permissions have been given on appeal to unauthorised development on green-belt land. Will his new rules ensure that the land is returned to green belt in due course?

[Mr Pickles]

The old planning guidance gave Gypsies and Travellers certain exemptions with regard to the green belt. It is our intention to repeal those exemptions.

[Jeremy Corbyn (Islington North) (Lab)]

Will the Minister help me with the problems facing private tenants in my constituency? Almost a third of my constituents are private tenants who pay very high rents in flats and houses that are expensive to heat and often badly maintained. Does he not think that it is time that we had much tougher regulation of the private rented sector, including rent regulation, because rents are astonishingly high for people who are unable to save or to move on from the private rented sector?

[Grant Shapps]

I had a lot of sympathy with the first part of the hon. Gentleman’s question. He and I have discussed this matter before. If we introduce rent controls, which seems to be what he and other Opposition Members are calling for, we know exactly what will happen. Rent controls were introduced after the war and the private rented sector shrunk from 50% of the market to just 8%. When rent controls were removed, that doubled to 16%. The latest figures from the English housing survey show that it is on its way up from there. Rent controls would restrict the market and make it more expensive for exactly the constituents whom the hon. Gentleman is trying to protect.

[Brandon Lewis (Great Yarmouth) (Con)]

T8. As a result of poor contractual arrangements set up by the Labour Government, the East of England Development Agency has received bonuses of more than £250,000, despite it being scrapped. Does the Minister agree that local enterprise partnerships are already showing that not only are they less bureaucratic, but they give a much better return on public investment?

[Greg Clark]

They certainly are. The local enterprise partnership in my hon. Friend’s constituency is chaired by Andy Wood of Adnams who, without any bonus, gives fantastic leadership from the private sector to a very successful local enterprise partnership.

[Simon Danczuk (Rochdale) (Lab)]

Everybody knows that Rochdale is the birthplace of co-operation and has been at the forefront of retail innovation. Once again, it has the potential to create a fantastic town centre. Does the Secretary of State agree that Rochdale is right to work towards being a Mary Portas pioneer?

[Mr Pickles]

The Rochdale pioneers were of course immensely important in retailing. If I may confide in the hon. Gentleman, I can tell him that Rochdale is the apple of my eye in the north-west. I hope, if only for the sake of romance, that it can put up a very good case. Nothing would give me greater pleasure than to award the pilot scheme to Rochdale.

[Mr David Ruffley (Bury St Edmunds) (Con)]

Residents of Westbury avenue in Bury St Edmunds want to hold a jubilee street party, but local council officers have told them that road signs will have to be erected in that very quiet suburban road at a cost of £396. Will the Secretary of State please assure me that he will do everything to slash such pointless pettifogging bureaucracy?

[Mr Pickles]

I can assure my hon. Friend that those regulations have gone. The bunting police have gone, and there is no need to put up expensive signs or do a traffic survey. Why to goodness cannot we simply get on with celebrating the Queen’s diamond jubilee and recognising that such roads can be closed with the minimum of disruption? Let us just enjoy the day.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

We now know that black and minority ethnic groups are being disproportionately affected by the flatlining economy. According to the Office for National Statistics, the unemployment level for young black men now stands at more than 56%. Will the Secretary of State explain how his integration strategy and programmes such as the big lunch and community music days will address that?

[Andrew Stunell]

The integration strategy is far wider than that. I point the hon. Lady to the Government’s social mobility and equality strategies and the Youth United project, and I remind her that important announcements are coming about ensuring that every young person, regardless of their ethnic background, has access to education or employment.

[Sir Bob Russell (Colchester) (LD)]

Further to Questions 13 and 14, which were about Government support for town centres, will the Secretary of State take under his wing corner shops and neighbourhood shopping parades by lowering business rates and offsetting that through a levy on out-of-town retail stores’ car parks?

[Mr Pickles]

We have indeed reduced business rates and, as the hon. Gentleman will know, there is a discount available for small businesses. In the Localism Act 2011, we have given local authorities the ability to offer a discount and removed car parking restrictions. In case he is in any doubt, I should say that Colchester is the apple of my eye.

[Gloria De Piero (Ashfield) (Lab)]

Do Ministers agree that spending £80,000 on changing a logo, as Conservative-controlled Nottinghamshire county council has, is an irresponsible use of cash when money is so tight?

[Grant Shapps]

The good thing about Nottingham county council is that we can see what it is spending. It is a shame that the same cannot be said of Nottingham city council, the only council in the country that refuses to publish its expenditure.

[Several hon. Members]

rose—

[Mr Speaker]

Order. I am afraid demand has exceeded supply, as is often the case. We must now move on.

Afghanistan (Civilian Killings)

Monday 12th March 2012 Commons Chamber

15:33

[Mr David Winnick (Walsall North) (Lab)]

(Urgent Question): To ask the Secretary of State for Defence if he will make a statement on what discussions he has had with his US counterpart over the killing of civilians in Afghanistan.

[The Minister for the Armed Forces (Nick Harvey)]

The hon. Gentleman is of course referring to the very regrettable events in Kandahar on Sunday morning. We are all deeply shocked and saddened by the killing and wounding of Afghan civilians in Kandahar province. It was undoubtedly an appalling tragedy, and I know the House will join me in sending our deepest condolences to the victims and their families. We support the investigation into the attack.

The Secretary of State is currently overseas on official business but has regular contact with a number of Defence counterparts, including Secretary Panetta in the United States. The Secretary of State last spoke to the US Defence Secretary on Saturday about other matters, prior to this incident.

At this tragic time, I can only echo the words of General Allen, commander of the international security assistance force, and inform the House that the attack

“in no way represents the values of ISAF and coalition troops or the abiding respect we feel for the Afghan people.”

These have been a difficult few weeks in Afghanistan, with the Koran-burning, the tragic loss of six of our own soldiers in a Warrior and now this. I was able to see for myself the week before last the progress that we are making, and that the UK and ISAF remain resolute in our purpose.

[Mr Winnick]

As the Minister says, we are all deeply shocked and horrified by the news that an American soldier—a staff sergeant, I believe—went out in the night and murdered 16 innocent civilians in cold blood. Is it the case that the murders were in fact carried out in the night, and that the victims were asleep in their beds? Of the casualties—the victims of this mass murder—will the Minister confirm that nine were children and three were women? It has been reported—perhaps the Minister has the latest information—that some of the children were no older than two or three years of age. Were the bodies burned by the murderer? Perhaps we could have information on that too.

Obviously, as the Minister has said, all hon. Members are deeply saddened and send our sympathy to the families of the victims. I accept entirely that this is not in any way the policy of the NATO forces and certainly not that of the United States. Nevertheless, as he said, this follows other incidents and tragedies in which civilians have been killed by US troops, and US troops have urinated on dead Afghans and burned the Koran. That was a despicable act in itself, but it also took the lives of other innocent people who were killed by the Taliban in revenge.

Will the Minister accept—he mentioned the six brave British soldiers who died last week—that, overall, there is a growing feeling in this country, and no doubt in the United States, that this is an unwinnable war? People certainly no longer accept the official line that our security depends on our military continuing its military role in Afghanistan.

President Obama and the Prime Minister meet this week. Would it not be wise for them to accept the strong feeling that this war has gone on for more than 10 years and is not winnable? Apart from the tragic incidents that we are referring to, the need is for the Afghans themselves to find a solution to their political and military problems. After 10 years, outside military intervention is much more the problem than the solution.

I again make the point that so many people, including me—I do not know how many in the House of Commons feel the same, but I suppose I am not alone—simply no longer accept the official line, which I accept was also the previous Government’s official line, that our security depends on British troops fighting in Afghanistan. That will not help the fight against terrorism; it perhaps even helps the terrorists.

[Nick Harvey]

In answer to some of the factual questions the hon. Gentleman asked at the beginning, ISAF has confirmed that 13 Afghan citizens were killed in the attack. However, open source reports indicate that up to 16 may have been killed. As he said, I understand that nine children were killed in the attack. I have no further information on the age of those children. It is understood that a further five civilians were wounded and are being treated in the military hospital at Kandahar.

On the broader points that the hon. Gentleman makes, at the Lisbon summit ISAF drew up a time scale for the remainder of the combat operation in Afghanistan, which was reconfirmed at the NATO ministerial meeting two weeks ago. I believe that that is a realistic timetable for the remainder of our operation in Afghanistan.

The progress that is being made in building up the Afghan national security forces is impressive—not only in scale but in their competence. They are developing a culture of leadership and planning more of the operations in which they are involved. The process of transition from ISAF security lead to ANSF security lead is progressing well so far. I believe, therefore, that we are on the right course and have the right security strategy. I think what the hon. Gentleman is getting at, though, is the widely held view that we need to find a political solution to the future of Afghanistan. Although progress on that has been disappointingly slow, there are now encouraging signs, and there is a realistic prospect that a political process will be under way within the time scale I am talking about.

[Sir Menzies Campbell (North East Fife) (LD)]

These are devastating events for the victims and their families which may well have long-term implications for ISAF between now and 2014. Does my hon. Friend accept that these events remind us of the fact that we ask our young men and women to be deployed to circumstances that are difficult, dangerous and stressful? In our recruitment, we lay great stress on physical attributes, but is he satisfied that we are equally searching when it comes to the psychological component of recruitment? If not, is it not time for a review?

[Nick Harvey]

My right hon. and learned Friend is right to say that we demand exacting standards from our new military recruits, and they certainly have to pass physical tests, among others. We are always on the lookout for signs of people suffering psychological stress—that occurs at every point—and considerable progress has been made in recent years on removing some of the stigma that attaches to anybody in those very exacting circumstances suffering from the effects of stress. There should never be any shame attached to that. We are making progress in identifying it, in extending a sympathetic arm to those suffering from stress and in improving the long-term assistance given to them when they return to the UK, because the sorts of incidents that some of them will have witnessed will stay with them for the rest of their lives.

[Mr Kevan Jones (North Durham) (Lab)]

The killing of 16 innocent civilians in Afghanistan yesterday was an appalling act, and I join the Minister in rightly sending our thoughts to the families of the victims of this incident. The information we have so far is that it was the act of an isolated individual outside the chain of command, and it is important that we do not draw any wider conclusions about the conduct of US or other ISAF forces, who act with unparalleled bravery and professionalism in the conduct of their mission in Afghanistan.

We have all heard the warnings from the Taliban of reprisal attacks on coalition forces. In the light of that, may I ask the Minister what assessment the Government have made of the increased threat posed to UK armed forces and civilian personnel working in Afghanistan? Have any operational changes been made—notably on ending the use of night raids—and has additional security been put in place to protect diplomatic and civilian staff working on behalf of the UK Government?

The influence of ISAF forces in stabilising Afghanistan depends on the trust of the Afghan people. This act has clearly put that trust, carefully built over the past 10 years, in jeopardy. Will the Minister say what discussions the Government have had with ISAF counterparts on measures that can be put in place to build trust in the light of this appalling incident? The post-2014 planning will determine the success of our mission in Afghanistan, so will he say a little more about what early assessment ISAF has made of the impact of these events on negotiations over ISAF’s presence post 2014?

Although the tragedy is undoubtedly a blow to the ISAF mission, what about the UK’s mission and British public opinion? Will the Minister tell the country more clearly what the UK’s long-term commitment to Afghanistan will be and what type of nation he expects to leave when the draw-down takes place post 2014?

We have always approached the issue of Afghanistan from a bipartisan standpoint, which it is important to do while we have our forces in harm’s way there. We welcome the Prime Minister’s commitment to raise the issue of Afghanistan at his meeting in Washington with President Obama this week, and we look forward to seeing greater details of the plans for post 2014.

[Nick Harvey]

It is important to stress that there is a US and Afghan investigation now under way into exactly what happened. However, I agree with the hon. Gentleman that this would appear to be the action of one isolated individual, completely outwith the control of the chain of command, and he is also absolutely right that it is in no way indicative of the behaviour of the rest of the ISAF forces who are there.

The hon. Gentleman asked me about force protection. We were already operating on an enhanced set-up for force protection in the light of the Koran-burning incident; following this incident, vigilance will be even greater, and at a local level, commanders on the ground will be making whatever sensible arrangements they think are necessary. Operations in the night are increasingly led by Afghan forces, and I think this is likely to be the case even more so in the foreseeable future.

The hon. Gentleman quite rightly raised the issue of trust. It is absolutely essential to what we are doing that there is trust between the international forces, and the Afghan authorities and the Afghan people. There is no doubt whatever that that trust will have been tested severely by the incidents of the last few weeks. Of course, this is not one-way traffic, because we have seen incidents where both British and French troops have been killed by Afghan troops they were mentoring. These are delicate relationships, but I was impressed when I was there two weeks ago that the commander of ISAF took this aspect of his work extremely seriously and had been very quick to get on the front foot and go to President Karzai and the Afghan authorities to apologise and make clear the profound regret that he and the west felt for the incidents that have happened.

As for the post-2014 situation, it is important that everybody understands—both in the west and in Afghanistan—that the end of western troops being in Afghanistan in a combat role does not mean the international community walking away from Afghanistan. It is certainly the case that we will continue to have troops stationed in Afghanistan, providing training and mentoring for Afghan troops. Specifically, we have made a commitment, as the hon. Gentleman will be aware, to take the lead internationally in running the officer training programme from 2013 onwards. However, as we begin and continue the process of transition, we expect to see a greater number of international partners coming in and helping Afghanistan to build up, in terms of both aid and, increasingly, ordinary trade and economics. We cannot allow the setbacks of the last few weeks to put us off that overall objective, which in my view, notwithstanding all the pressures, remains on course.

[Bob Stewart (Beckenham) (Con)]

We have got two years and about nine months left of combat operations in Afghanistan, and we have lost 404 soldiers so far. The idea that we can start challenging the plan to withdraw early worries me a great deal, because soldiers need certainty. It is needed for the officers to plan and for the soldiers to get used to it. It is going to be increasingly challenging for our soldiers over the next two years, as we move towards withdrawing from combat operations. Does the Minister agree with that assessment? We have got to support our soldiers utterly and completely. The plan is set and must now remain set.

[Nick Harvey]

Let me assure my hon. Friend that the internationally agreed plan remains firmly in place. It was reiterated two weeks ago at the NATO ministerial conference. It is important for all those who are engaged in the operations in Afghanistan to understand that the plan remains in place and that there is no question whatever of our cutting and running early because of these events or any others. Two out of five phases of transition—area by area, district by district—have so far taken place, and both appear broadly to have gone off very well. The three remaining phases will take us through this year and into next year. Within the time frame between now and 2014, the nature of the work that our troops are doing will increasingly shift to a supportive role, but they will still be there bearing arms until the end of 2014. It is important, particularly for those who grieve for the losses that we have suffered, that they should not believe that those losses have been in vain. We are not going to give up; we are going to see this through and finish the job off according to the internationally agreed plan.

[David Miliband (South Shields) (Lab)]

May I return the Minister to the question of a political strategy, which he rightly says is the key to ending any insurgency? The Defence Secretary wrote in The Daily Telegraph last week that a political strategy could not succeed until the Afghan Government had established a position of strength. May I put it to the Minister that the difficulty with that is that the Afghan Government are seen by many Afghans as a significant part of the problem, and that the search for a position of strength defies the logic of a counter-insurgency, which is that one can achieve tactical advances in one part of a country while the insurgency strikes back elsewhere? Does he acknowledge that the best approach would be for the international community to appoint an international mediator with United Nations Security Council backing who could talk to those on all sides and frame the political strategy, both internal and regional, that is so desperately needed? Does he also acknowledge that, if we do not start working on that now, every day that passes will weaken the chances of establishing a stable Afghanistan that we can leave?

[Nick Harvey]

I entirely agree with the right hon. Gentleman’s stress on the need for a political solution. During his time as Foreign Secretary, he did his best to promote such processes, but unfortunately he did not meet with a great deal of appetite elsewhere for getting them under way. Frankly, it has remained pretty tough going until relatively recently. Thankfully, some of the key stakeholders now seem to be showing a greater appetite for sitting down and participating in a political process. The Afghan Government are certainly more willing to do so than they have been in the past, and it looks as though the Pakistan Government might also be more willing to engage in such a process. The proposal to open a Taliban office in Qatar has served as a catalyst to focus people’s minds. The right hon. Gentleman was paraphrasing the Defence Secretary slightly; I do not think a political process has to await a situation in which the Afghan Government achieve a position of strength. Applying military pressure to the Taliban has probably made it more likely that they will be willing to sit down and join a political process, but any such process must be inclusive of all the elements in Afghanistan who need to buy into a long-term settlement, as well as all the elements in the region who will be vital to the delivery of peace on the ground in the years to come. We are a long way from achieving that, but progress is at last being made.

[Several hon. Members]

rose—

[Mr Speaker]

Order. Accommodating the level of interest in this subject, given that there is important time-limited Back-Bench business to follow, will necessitate brevity, which will now be exemplified by Dr Julian Lewis.

[Dr Julian Lewis (New Forest East) (Con)]

I thought you might pick me for that, Mr Speaker.

The Afghan Government and the Afghan people are rightly outraged by this atrocity, but does the Minister agree that the one bunch of people who have no right to promise revenge are the Taliban? It was their hosting of an international terrorist organisation that murdered thousands of men, women and children that led to the invasion of Afghanistan in the first place.

[Nick Harvey]

I entirely agree with my hon. Friend. In addition to their past atrocities, the Taliban are also responsible for the great majority of civilian deaths in Afghanistan—77% in the past year.

[Mr Denis MacShane (Rotherham) (Lab)]

Two years and nine months is half the length of the second world war, and a plan that cannot be changed in the light of circumstances is barely worth the paper it is written on. The Minister has a hard job, and we are not here to criticise, but these incidents and atrocities are typical of the end of an occupation or a conflict. We cannot justify British soldiers dying between now and withdrawal. Does the Minister agree that we should honour the sacrifice of our men by ensuring that no more are sacrificed?

[Nick Harvey]

Nobody has said that we are adhering to a plan that cannot be changed. The point I have been at pains to make is that the plan has not been changed as yet. Of course we follow closely, as do the ISAF commanders, the situation on the ground. The plans will reflect the realities as we go forward. This is a process of transition. I said that we have gone through two of the five phases of transition—and it is broadly working. I have to say that the rate of casualties on our side has come down markedly. I simply do not think that the right hon. Gentleman is right: if we were to pack up and leave now, it would make a mockery of everything that has been done to date.

[Patrick Mercer (Newark) (Con)]

History has a way of repeating itself. Not only did six British soldiers die last week within miles of where 1,000 perished in 1880, but the garrison of Kandahar in the same year also carried out a series of isolated unpleasantnesses against the civilian population. Armies reflect society. Regrettably, we have to expect more of these sorts of isolated instances. Will the Minister therefore comment on the rumour that this incident is related to alcohol—exactly as it was with the incidents in 1880—and on what is being done in respect of our Muslim allies and on how we will control the consumption of alcohol among allied troops?

[Nick Harvey]

The hon. Gentleman raises some interesting historical points, but asks me specifically whether we know of any connection between this incident and alcohol. I know of absolutely no such connection. It is, of course, the case that our forces in Afghanistan operate entirely dry; alcohol is not provided for them. I have no knowledge of alcohol having anything at all to do with this appalling incident.

[Keith Vaz (Leicester East) (Lab)]

The whole House is shocked by this terrible event, as are members of the British Afghani community, thousands of whom have settled in my Leicester constituency. This is the slaughter of the innocents. I understand that the father and son of this family survived these atrocities. In our discussions with the Americans over the next few days, we should urge on them the importance of supporting those who remain and the community they come from. I know there is going to be an investigation, but before that happens we need to do something to help this local community.

[Nick Harvey]

The right hon. Gentleman makes a very good point—that the sense of grief that will grip communities in Kandahar will, of course, be felt by the diaspora of Afghan and Pashtun people, not least here in the UK. He is absolutely right that there is no need to await an investigation of exactly what happened before we begin to repair relations with those communities as far as we possibly can and to offer every possible support to the families and those grieving in the wake of this appalling incident. It is certainly the case that we will urge our allies to crack on and do that.

[John Hemming (Birmingham, Yardley) (LD)]

The Minister will be aware that a minority of the House, including myself, voted for withdrawal some time ago.

In an asymmetric conflict, emotions are very important in driving people’s behaviour. Will the Minister agree to review the current strategy to identify whether that fact in itself could make it harder rather than easier to achieve our objectives in the long term?

[Nick Harvey]

The ISAF strategy is kept under constant review. I can reassure my hon. Friend that it will continue to be so, but I do not think it would make sense for us to be in a great hurry this week, in the aftermath of these incidents, to spring into some fundamental review. I can assure him, however, that the temperature is read constantly and that progress is assessed all the time. We will take stock of everything that happens as we continue to plan on an international basis what we will do for the remaining two and a half years.

[Jeremy Corbyn (Islington North) (Lab)]

This is a terrible tragedy. It is not the first, and it will probably not be the last. Equal tragedies—such as the killing of wedding parties by drone aircraft, and so many others—compound the results of this the 11th year of the war. As neither the Minister nor his Secretary of State is able to say what success would be in Afghanistan, is it not time to bring forward the date of withdrawal, and to recognise that this has not been a profitable or a successful operation?

[Nick Harvey]

We are able to say what success would be. Success would be an orderly and successful handover of security to a competent and able Afghan national security force by the end of 2014. Many challenges will face us between now and then if we are to achieve what remains an ambitious target, but that is what success would look like, and that is the strategic goal in security terms towards which we are working. However, I repeat the point made by the former Foreign Secretary, the right hon. Member for South Shields (David Miliband): if there is to be a lasting peace in that part of the world, a political process is needed alongside the security strategy. Unless we have both, we will not secure the lasting peace that I think everyone in the House wants to see.

[Mr Julian Brazier (Canterbury) (Con)]

I share the horror felt by Members in all parts of the House at this ghastly incident, and endorse the policy supported by both Government and Opposition. Will my hon. Friend join me in welcoming the show of solidarity by Angela Merkel at a time when her Government are suffering from a number of other pressures?

[Nick Harvey]

It is important for us to retain an international view. The ISAF strategy is one that we have drawn up together, so expressions of support from the German Government are of course very welcome. Essentially, the conclusion that was reached at the Lisbon conference was that we had gone in together and should come out together. That is what I mean when I say that we will agree with our ISAF partners exactly what the strategy and the timelines should be, and that we will act together according to our collective judgment of the progress that we are making.

[Mr Dave Watts (St Helens North) (Lab)]

Does not the recent tragedy demonstrate that we need to speed up the process of transferring as much of Afghanistan as we can to Afghan control? Will the Minister give some indication of how many Pashtun soldiers will be in charge of Pashtun areas once the takeover has happened?

[Nick Harvey]

I do not think that the lesson to be drawn from this is that we should speed up a process which is moving as fast as it possibly can already. The hon. Gentleman should bear in mind that the Afghan national security forces are being grown from a cold start. I think that the progress they have made is remarkable: they have grown in number, but, far more impressively, they have grown in competence, in their quality of leadership, and in their ability to plan and execute operations. I think that hurrying the process at this stage, or passing the baton to them prematurely, would undermine all the progress that has been made. We are pushing the process of handover as fast as we possibly can, and if we were to cut and run now, we would risk undoing the progress that we have made.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

I echo what has been said about the improvements to the Afghan national army. We should not forget that that is due not just to British forces, but to the American forces who have trained them. We should also not forget that this was an isolated incident, and that more than 2,000 Americans have been killed. There will be some who call for urgent withdrawal, but I stress what has already been said by Members on both sides of the House. This is not just about security; it is also about governance, and I hope that that will be discussed at the forthcoming summit in Chicago.

[Nick Harvey]

The Chicago summit will provide an opportunity for the international community to make long-term commitments both to the future security of Afghanistan after the combat role has ended and to its future prosperity. We will look to countries around the world—countries that have been involved in ISAF, but also many others that have not—to come forward and make commitments to Afghanistan’s long-term future. We want all stakeholders in the equation to understand that the international community remain committed to the future of Afghanistan, and that simply ending a combat role at the end of 2014 does not mean in any sense that we are walking away or leaving them to it.

[Mr Nick Raynsford (Greenwich and Woolwich) (Lab)]

Apart from the horror of the latest incidents, by which we have all been rightly shocked, a number of other issues have been raised during these exchanges about the conduct of our combat mission during the remaining period in which we will deploy a combat role in Afghanistan. They are difficult issues, and I wonder whether it would be sensible for the House to have the opportunity to take part in a full and serious debate on the conduct of our mission. I see that the Leader of the House is present, and I wonder whether the Minister might recommend an early debate on the subject.

[Nick Harvey]

The right hon. Gentleman should, perhaps, raise that issue at business questions. I agree that it is important that we debate these matters, which is why the Government make quarterly statements on progress in Afghanistan and why, in between them, we have monthly written statements. If the House wishes to debate these issues further, we would welcome that, and I have no doubt whatever that there will be an opportunity to do so before too long.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

At morale-sapping moments such as these, our troops need to know that the standard operating procedures, and the checks on those whom they fight alongside, are as good as they possibly can be. Will the Minister assure the House that the lessons learned will be shared fully with the UK, and that we will be able to reflect upon the report on this terrible tragedy as soon as possible?

[Nick Harvey]

My hon. Friend’s constituency has been in the eye of the storm in the last couple of weeks, and it will feel more acutely than anywhere else the pain of the six losses we took in the earlier Warrior incident. He is right that there are broader issues at stake in the incident under discussion. We have a very open relationship with the Americans and the other ISAF allies, and we have the opportunity to reflect upon everything that happens and to learn from that. I assure my hon. Friend that everybody in ISAF is absolutely determined to learn from these incidents, and to ensure, to the extent that we can, that nothing like this happens again.

[Mr John Baron (Basildon and Billericay) (Con)]

Given the differences that there are between the Taliban and al-Qaeda and the increasing amounts of intelligence suggesting that very few al-Qaeda remain in Afghanistan, if we are to remain true to our original mission, does not this incident underline that the Americans, as the lead force, should open non-conditional talks with the Taliban in order to explore possible common ground, particularly given that the Taliban have recently sent signals that they are willing to talk?

[Nick Harvey]

Many more parties in addition to the Americans and the Taliban will need to be party to any lasting political settlement. There are other elements within Afghanistan who might not be at all comfortable with a simple two-way arrangement between the Taliban and the Americans. I believe that on all sides there is a genuine and growing openness to the idea of having a political dialogue, and I believe that that will begin to happen in time. However, I have to say that the way to ensure that al-Qaeda does not come back into Afghanistan and become an element in the future is for us to ensure that the future Afghan forces are able to look after their own security, including their own borders.

[Sir Bob Russell (Colchester) (LD)]

Although this was an appalling atrocity, does the Minister agree that, in recognition of what has been achieved by Her Majesty’s armed forces—those who have served, those who are currently serving and those who will serve—we should make it clear that it is in neither Britain’s nor Afghanistan’s best interests to follow the line argued by the hon. Member for Walsall North (Mr Winnick), who tabled the urgent question?

[Nick Harvey]

I could not agree more that the extraordinary investment that has been made in Afghanistan over the past decade—the money, the time, the patience, the bloodshed and everything that everybody who has gone out there and served so bravely and so valiantly has done—would be wasted if we were to cut and run now, when we can clearly see the remainder of the task that stretches out before us and we know what needs to be done to finish the job.

[Tony Baldry (Banbury) (Con)]

This incident raises broader questions about the general responsibility to the civilian population. Will the Minister confirm that infinite care is taken to ensure that everyone in the British Army—from the most senior commander to the most junior private soldier—is fully aware of their duties, responsibilities and obligations under the law of war? This is, perhaps, more relevant now than at any time since we have had a standing army, and there are probably currently more members of the army legal services advising throughout the British Army than there have ever been at any time in military history.

[Nick Harvey]

My hon. Friend makes some very good points. I would like to reassure him that, as part of the pre-operation training before going to Afghanistan, British troops are indeed given detailed tuition in the legal and moral aspects of warfare. I wish to put his mind at rest on the fact that they understand exactly where their obligations lie. Every time I visit Afghanistan, I am struck by the extraordinarily thoughtful way in which our troops go about their operations. If one has any sort of discussion with them, particularly with officers who plan and execute operations, one finds that there is nothing remotely gung-ho about what they do; it is all extremely thoughtful and it is always conducted with a keen appreciation of the legal and moral framework in which they operate.

[James Morris (Halesowen and Rowley Regis) (Con)]

Despite the terrible events of the weekend, does the Minister agree that it is more imperative than ever that we stick the course in Afghanistan to produce the stable country that we all need and want?

[Nick Harvey]

I entirely agree. We will still face many challenges in the remaining period of combat operations in Afghanistan, but we have identified a clear strategy and it is essential that we stick to it and create the space within which a political dialogue of the sort we have been discussing can take place.

[Jason McCartney (Colne Valley) (Con)]

Three of the six British servicemen who died last week were constituents of mine. Over the weekend, I met the parents of Corporal Jake Hartley and the grandparents of Private Anthony Frampton—Private Danny Wilford was the third of my constituents. Many other constituents have legitimately been asking me this weekend why we do not just withdraw now, so that there are no more young losses. However, after their deaths and those of their colleagues from the Yorkshire Regiment and the Duke of Wellington’s Regiment, and after these horrific killings of innocent civilians, it is important that we do not let their deaths be in vain and that we withdraw in an orderly and calm way, as we had planned with ISAF forces.

[Nick Harvey]

I commend my hon. Friend’s words, as he is absolutely right in what he says, and I know from the contact we have had with other bereaved families that that is exactly their view, too. They feel that the sacrifice that has been made and the valour that has been shown will be rewarded only if we stick at the task and finish the job that we can see clearly before us. That is what we are determined to do.

[Mr Peter Bone (Wellingborough) (Con)]

This was a terrible incident, but the whole House will be aware that our young men and women put their lives at risk every day to protect Afghan civilians. There is a group of people in this country who are always worried about those people overseas: their family and friends. Given the heightened danger that our troops must be in at the moment, what reassurance can we give to those people?

[Nick Harvey]

My hon. Friend is absolutely right to pay tribute to the personal commitment made by all those whom we ask to go out to serve on our behalf, and of course we must recognise the stress and worry that this puts on their families behind them. We will continue to do everything we can to support them, and I know that everyone in this House is very proud of what they do, no matter what our policy differences might be. It is right that, after we have had casualties of our own, we grieve and acknowledge the sacrifice that has been made, but of course the reason why we have had this question this afternoon is to recognise also that the Afghan civilian population is making a terrible sacrifice. Our thoughts and our prayers remain with those Afghan villages and the families there, who have been on the wrong end of an appalling tragedy, which I know we all profoundly regret.

[Mr Speaker]

We are grateful to the Minister. I call Mr Eric Joyce to make a personal statement.

Personal Statement

Monday 12th March 2012 Commons Chamber

16:13

[Eric Joyce (Falkirk) (Lab)]

Thank you, Mr Speaker. Hon. Members will be aware of the events in the Strangers Bar on 22 February, during which the standard of my conduct fell egregiously below what is required of a Member of this House or, indeed, of anyone, anywhere. I am grateful for this opportunity to apologise without reservation to the House, and, in particular, to the hon. Member for Pudsey (Stuart Andrew), my hon. Friend the Member for Sedgefield (Phil Wilson), the hon. Members for Brigg and Goole (Andrew Percy), for Elmet and Rothwell (Alec Shelbrooke) and for Thurrock (Jackie Doyle-Price), Councillors Luke Mackenzie and Ben Maney, police officers on the night and, indeed, everyone else affected by my actions that evening; clearly that will not be an exhaustive list. They have all shown considerable grace in their public comment, for which I am very grateful. I do, of course, have other apologies to make, including to my constituents, and I will take other opportunities outside this place to do so at greater length.

Sir, I would like to express my thanks to Members on both sides of the House, and indeed the other place, who have contacted me to express concern, however undeserved it is on my part. Clearly, I have a number of personal issues to address and you can be assured that this will take place. In the meantime, Members will know that certain short-term constraints have been quite rightly placed on me by the court. I will, of course, observe them strictly within the parliamentary precincts as well as elsewhere.

I would also like to inform the House that I have today tendered my resignation as a member of the Labour party to my party leader. Thank you, Sir.

[Mr Speaker]

I thank the hon. Gentleman for what he has said and for the commitments that he has made.

Backbench Business Committee

Monday 12th March 2012 Commons Chamber

[Mr Speaker]

Before I call the Deputy Leader of the House to move the motion, I should inform the House that I have selected amendments (a), (b) and (c) in the name of Natascha Engel and amendments (g) and (h) to amendments (a) and (b) in the name of Mr John Hemming. I have also selected amendments (d), (e) and (f) in the name of Mr Peter Bone. The amendments will be debated together with the main motion and the Questions necessary to dispose of the motion will be put at the end of the debate.

16:16

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

I beg to move,

That—

(1) this House endorses the principle that parties should elect members of the Backbench Business Committee each Session and thereafter when a vacancy arises in a secret ballot of all Members of that party by whichever transparent and democratic method they choose.

(2) Standing Order No. 122D (Election of Backbench Business Committee) shall be amended as follows—

(a) line 7, at end, insert—

‘(ba) No Member may be a candidate for the chair of the committee if that Member’s party is represented in Her Majesty’s Government.’;

(b) in line 12, leave out from second ‘of’ to end of line 14 and insert ‘a party represented in Her Majesty’s Government and no fewer than ten shall be members of a party not so represented or of no party’;

(c) line 28, leave out paragraph (2);

(d) line 64, leave out sub-paragraph (b); and

(e) in the Title, after the word ‘of’, insert ‘chair of’.

(3) Standing Order No. 152J (Backbench Business Committee) shall be amended as follows—

(a) line 7, leave out paragraph (3) and insert—

‘(3) The chair of the committee shall continue as chair for the remainder of the Session in which that person is elected as chair unless the chair is declared vacant by the Speaker under the provisions of Standing Order No. 122C (Resignation or removal of chairs of select committees) as applied by paragraph (3) of Standing Order No. 122D (Election of Backbench Business Committee).’;

(b) in line 12, leave out ‘and members’;

(c) line 21, at end, insert—

‘(6A) The Committee shall have power to invite Members of the House who are not members of the Committee and who are of a party not represented on the Committee or of no party to attend its meetings and, at the discretion of the chair, take part in its proceedings, but—

(a) no more than one Member may be so invited to attend in respect of the same meeting;

(b) a Member so invited shall not move any motion or amendment to any motion, vote or be counted in the quorum.’.

As the House will be aware, the Select Committee on Procedure, which is chaired with such distinction by the right hon. Member for East Yorkshire (Mr Knight), is conducting a review of the Backbench Business Committee. The Government look forward to contributing to that review and my right hon. Friend the Leader of the House looks forward to giving oral evidence. I am sure that the whole House will look forward to the conclusions set out in the review and the Government will certainly consider any recommendations very carefully.

[Mr Greg Knight (East Yorkshire) (Con)]

I am grateful to the Deputy Leader of the House for his preamble. In the light of what he has said, why do the Government consider it inappropriate to leave this motion until after the Procedure Committee has reported?

[Mr Heath]

I am very grateful to the right hon. Gentleman for that question. Having already said what a splendid fellow he is, I am happy to address the issue that he raises. We expect the Procedure Committee’s conclusions to be of great value, as they have been on a number of other topics. I want to emphasise that today’s motion is not intended to pre-empt the review—[Interruption.] Well, it simply does not. It makes three changes that need to be made this Session in order to take effect before the next elections for members of the Backbench Business Committee and therefore before the completion of the review. As the right hon. Gentleman knows, those changes arise in part from points made in evidence to the Procedure Committee’s inquiry into the 2010 elections and that Committee itself envisaged changes as regards minority parties being made in advance of the review.

[Mr James Gray (North Wiltshire) (Con)]

I thank the Deputy Leader of the House for giving way and I apologise as I am chairing a Committee upstairs at 4.30 pm and will therefore be unable to stay and listen to the end of his remarks. As a member of the Procedure Committee, I thought I would raise the notion that the question of whether the Committee should be elected on a party basis is a difficult matter that I shall be considering very carefully during the forthcoming proceedings of the Procedure Committee. In the meantime, given that he is proposing to make that change without such consideration having taken place, I have no option other than to vote against the Government this evening.

[Mr Heath]

I am sorry to hear that, obviously, but it is for the House to make that decision in the light of today’s debate. There would be very little point in our determining that we should have made a change to the process of election after the elections had been held for the next Session. It seems appropriate to me that the House should have the opportunity, as it does today, to consider the matter and come to a conclusion. The will of the House on whether it wishes to make the suggested changes will then prevail.

[Mr David Davis (Haltemprice and Howden) (Con)]

The hon. Gentleman is right to say that it is for the House to make its decision as this concerns House of Commons business. Will he tell us whether Government members and parliamentary private secretaries are being whipped on this business, and if so why?

[Mr Heath]

The right hon. Gentleman will have to ask his right hon. Friend the Patronage Secretary about the position on whipping. There are motions on the Order Paper for debate later today that very much reflect the Government’s position on the conduct of business. On those matters, it is quite clear that right hon. and hon. Members who are members of the Government will be whipped to support the Government view, and they are of course here as a consequence.

[Chris Bryant (Rhondda) (Lab)]

Given what the hon. Gentleman has just said, it is perfectly possible that the Government will get this motion through, without any of the amendments that have been tabled, on the back of a payroll vote. Will he undertake that if that does happen and the Procedure Committee then decides that it wants to take the House down a slightly different route, he will table motions to allow that to happen in the next Session?

[Mr Heath]

I have already indicated that we will want to see the Procedure Committee’s conclusions. It has been the practice of my right hon. Friend the Leader of the House and myself to bring forward motions to allow the House to consider the Procedure Committee’s recommendations. I do not think we have anything to be ashamed of in that respect as we have been very careful to ensure that the House has opportunities, where possible, to determine these matters. Obviously, we shall have to wait and see what emerges from the Committee in due course.

[Mr John Baron (Basildon and Billericay) (Con)]

My hon. Friend is being generous in giving way but he still has yet to explain why he and the Government are pre-empting the Procedure Committee’s findings, particularly given one of its last known findings, at paragraph 59 of its latest report, which stated:

“We have received no adverse comments on the arrangements for the elections to the Backbench Business Committee”.

Can the Government justify their position?

[Mr Heath]

There was limited scope for complaints about elections to the Backbench Business Committee because, certainly on the Government side of the House, there were no elections: the Members who serve on the Committee were elected unopposed. However, the Procedure Committee proposed that we needed to consider the position of minority parties and I assured Members from the minority parties when we first debated this matter that we would look into this and come back with proposals. I think we would be deficient in our response to the House if we were not to have that debate before the opportunity arises to vote again on the Backbench Business Committee.

[Pete Wishart (Perth and North Perthshire) (SNP)]

I am grateful to the hon. Gentleman for giving way and for using the word “deficient” because his proposals for the minority parties are clearly deficient and unsatisfactory. Our being given observer status on a Backbench Business Committee—a Committee of the House—as though we were second or third-class citizens of the House is totally unacceptable to us, so if this is all about the minority parties and the smaller parties, he can forget it.

[Mr Heath]

I am rather minded to forget it. I went to a great deal of trouble to address the specific issue that the hon. Gentleman asked me to consider when we first debated this. He asked for his party and the other minority parties to be allowed to put up candidates for election as the Chair of the Committee. That is what we are proposing today and he says, “Forget it.” Well, we shall see whether he supports the contention when it comes to the vote.

[Several hon. Members]

rose—

[Mr Heath]

I think I should make a little more progress as I have yet to explain what the proposal is, but I will come back to right hon. and hon. Members who wish to contribute.

The motion aligns the method of election to the Backbench Business Committee with that for other Select Committees. The hon. Member for Perth and North Perthshire (Pete Wishart) might feel aggrieved that he does not have representation on all the Select Committees of the House, but he does not because, on the basis of the formula, he does not have enough party members in the House to have that level of representation. The motion provides protection against unwarranted interference by a future Government in the election of the Chair—something that some hon. Members were very concerned about. We propose to give the House an opportunity to determine that issue today. The motion provides also for participation by the minority parties, however ungrateful they may be, in the Committee.

Nearly a month ago, the Government’s response to the Procedure Committee’s report was published. It stated quite explicitly that

“the Government believe that it would be appropriate for the House to address the anomaly whereby members of the Backbench Business Committee other than the Chair (unlike those of other select committees) are elected by the House as a whole rather than by Members of the political party to which they belong before the next elections of members. The Government propose to allow time for consideration of proposals to this effect towards the end of the current Session.”

[Mr John Redwood (Wokingham) (Con)]

Should not a strong and confident Government accept whatever kind of scrutiny the House thinks is appropriate? Does the hon. Gentleman not get the mood of the House today? Everyone who has spoken so far today and, I think, those who have not spoken believe he should withdraw the motion and await the proper conclusions of the Committee?

[Mr Heath]

I prefer to hear the preponderance of voices in a Division, rather than take a snapshot of how the House may feel before it has had a chance to hear the debate. It is for the House to determine which way it wants to go on the proposals—

[Several hon. Members]

rose—

[Mr Heath]

I shall make a little more progress. I have been reasonably generous in giving way to hon. Members, and I will no doubt be sufficiently generous again.

The Government could not have been clearer about their intentions. There has been some suggestion that the motion has been sprung on the House without notice or at the wrong time. I suggest that that contention is without merit.

When moving the motion which led to the establishment of the Backbench Business Committee on 15 June 2010, my right hon. Friend the Leader of the House pointed out that

“For the first time in over a century, the House will be given control over significant parts of its own agenda.”—[Official Report, 15 June 2010; Vol. 511, c. 779.]

That shift in control is one which this Government facilitated and to which they remain fully committed. The subjects of debate and the form that motions for debate take on the equivalent of 35 days a Session, including at least 27 days on the Floor of the House, are now properly a matter for the Backbench Business Committee. The debates chosen by the Backbench Business Committee have helped to raise the public profile of the House of Commons, and increased public awareness of the crucial role of the House in holding the Executive to account. The subjects chosen might well not have been chosen by the Government, or indeed by the Opposition, and have been challenging for us. That is part and parcel of the switch of power that the Wright Committee envisaged.

The Government are committed to the continuing role of the Backbench Business Committee, and to providing the time to that Committee in a Session of normal length which is set out in Standing Orders. The motion before us today does not affect in any way the Committee’s powers or its role.

The first change addresses an anomaly in the method of election of members of the Backbench Business Committee. At present, all members of the Committee are elected by the whole House. This is wholly appropriate for the Chair of the Committee, who represents the whole House, but it may not be appropriate for the other members. It is wrong in principle that, for example, the choice of Opposition Members on a Committee could be decided by the votes of Members on the Government Benches, who will inevitably outnumber them.

I read a comment in the electronic media earlier today—because of the anomaly, why do we not change the rules for all the other Select Committees to match those for the Backbench Business Committee? The reason is obvious. If we were to do that, the Government of the day would control who the Opposition parties put on Select Committees. The House would rightly be outraged if that were the position, yet that is the position that we currently have with the Backbench Business Committee.

[Several hon. Members]

rose—

[Mr Heath]

I shall give way to the hon. Member for Harwich and North Essex (Mr Jenkin), the Chair of the Public Administration Committee.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

No doubt my hon. Friend has seen the evidence submitted by Dr Meg Russell to the Procedure Committee, in which she expressed her view that to go down the route he has chosen

“would be very much contrary to the spirit of what the Wright Committee intended.”

Is not the answer that the Backbench Business Committee is a special committee, not like an ordinary Select Committee, and that its Chair should be selected in the same manner as the Speaker and represent the whole House, as indeed should its members? That is what Wright intended. Why is he departing from Wright?

[Mr Heath]

As I said when responding to the debate on the original motion to set up the Backbench Business Committee, Wright is not holy writ and should not be treated as such, not least because there are internal contradictions in the Wright report, just as there are sometimes in holy writ. Therefore, the House has to take a view on what is in the best interests of its procedures. That will be for the House to decide. I simply contend that it is a strange situation where the biggest party represented in the House can override the interests and decisions of other parties in deciding who its representatives on the Committee will be. I would have thought that my hon. Friend the Member for Harwich and North Essex had confidence in the ability of his own party’s procedures —I am afraid I have no specialist knowledge of them—to make a proper determination of who should serve on the Committee on its behalf.

I agree with my hon. Friend the Member for Harwich and North Essex that different considerations apply to the Chair of the Committee, as he set out, which is why we propose that the Chair should continue to be elected by the whole House, with one proviso: we think that the Government should not provide the Chair, for perfectly obvious reasons. The situation is exactly analogous to that of two other Committees—the Standards and Privileges Committee and the Public Accounts Committee. There is a strong argument in favour of the Committee’s decisions not being seen as the result of some sort of internal collusion between the Government and the legislature, and I think that the clearest way of indicating that they are not is to ensure that the Chair comes from a party that is not represented in Government.

[Mr Edward Leigh (Gainsborough) (Con)]

So, the Deputy Leader of the House can of course give us an assurance that the Government are not seeking to change the rules now because existing members of the Committee have proved too independent.

[Mr Heath]

I can give that clear assurance, because I have absolute confidence that the members elected by the party groups will be every bit as independent as those elected by the whole House, and perhaps even identical in person. What I am trying to do is prevent the potential abuse of that process, which could clearly happen under the present rules. I hope that each of the parties, through their internal mechanisms, will have sufficiently robust structures in place to ensure that the Whips, if they come running to Back-Bench Members to have a particular Member elected to the Committee, will be robustly told where to go. But we shall see, because that is internal to the various parties and their internal democratic processes.

[Dr Julian Lewis (New Forest East) (Con)]

I am struggling a little to follow the argument the Deputy Leader of the House is making. If it is the case that the present Chair and members of the Committee have been conducting themselves excellently, why change now in a hurry when we are still waiting for a report? If the Government are so concerned about this—perhaps there is a point I have overlooked—why did he not bring in the arrangement he is proposing at the beginning of the process? Why are we bringing it in when the process is well under way, given that the people who have been running the Backbench Business Committee appear to be doing such a splendid job?

[Mr Heath]

I have already said why. We are doing that now because we are about to have elections, and we do not change the rules of elections after elections. It is normal practice, and normally more constructive, to change the rules before elections, rather than afterwards.

The hon. Gentleman asks why we did not start from a different basis. I accept, and the House is fully aware, that we started with the draft proposals from the Wright Committee, and it was obvious then that what applied to the Backbench Business Committee was different from what applied to any other Select Committee. The precautionary principle in elections to other Select Committees exists for a reason: to stop interference—in a party political way, between the parties—as to who on Select Committees should represent Members. I think that is quite an important principle, but the House must decide whether it considers it to be an important principle. If the House considers it to be nugatory, the House will vote accordingly.

[Mr David Nuttall (Bury North) (Con)]

I realise that my hon. Friend is keen to bring the rules of the Backbench Business Committee into line with those of other Select Committees, so why does he not propose to bring it into line with Standing Order No. 151(11) so that its members are elected for the whole Parliament, rather than for a Session at a time?

[Mr Heath]

The hon. Gentleman raises a separate issue, one that we explored at length when we set up the Committee. The answer is that the Committee is a Committee of the House which deals with the topical issues before it, and it is right that Back Benchers have a regular opportunity to express their view on its performance; I make no apologies for that. It is sensible that the House has such control, because if we were to elect the Committee’s members for an entire Parliament, the House would lose that opportunity to reflect on, or to see, whether the Committee was conducting itself as the House had hoped.

That is entirely different in kind from the responsibilities, within a Select Committee, of Select Committee members, who need such continuity in order to do effectively their job of holding to account the Department in question. To my mind there is a clear separation, but the hon. Gentleman may take a different view. I am simply confident that the House is capable of making decisions about the way in which it conducts its affairs, and of doing so without the benefit of distortions of any kind in the system. That is what is proposed today.

[Mr Baron]

Will my hon. Friend give way?

[Mr Heath]

I am going to have to make some progress very soon, because I have gone very little distance in explaining the tenor of my comments, but I will give way once more to the hon. Gentleman, as I am a very generous man.

[Mr Baron]

My hon. Friend is being very kind, but in all these exchanges he has singularly failed to answer one simple question: why are the Government pre-empting the findings of the Procedure Committee?

[Mr Heath]

The hon. Gentleman says that I have singularly failed to answer the question, but I have answered it several times; he simply does not like the answer I have given. There is a subtle distinction between not answering and others not accepting the answer. As I have said, the answer is that this is the opportunity we have before the elections.

The Procedure Committee will not report before the elections are due, and I do not want to put any further pressure on it to complete its report in a hurry, because these are very important matters on which we want the full benefit of its advice. It is no good crying after the event if it proves that we have made an error in our election of Members to the Backbench Business Committee. That is why the House has been given the opportunity today to consider whether it wants to make the changes that I have suggested.

The motion achieves that—

[John Hemming (Birmingham, Yardley) (LD)]

Will my hon. Friend give way?

[Mr Heath]

Yes, but this will be the last intervention for some time.

[John Hemming]

On that point, the problem so far in getting Procedure Committee debates on to the Floor of the House has been the Government allocating time for the Backbench Business Committee so that the Committee can allocate time to debate a Procedure Committee report. If the Government were to promise to allocate time immediately to debate a Procedure Committee report, there would be no difficulty in getting that through in time for the elections.

[Mr Heath]

There is one small difficulty with that, which is that the Backbench Business Committee is precluded from putting forward time for amendments to its own constitution. That is why it has to be a matter for the Government, and why we are providing time today, and would provide time in future, to consider the results of the Procedure Committee report.

The motion achieves what I have been describing by a simple endorsement of the principle that parties should elect members of the Backbench Business Committee each Session, and thereafter when a vacancy arises, in a secret ballot of all Members from that party by whichever transparent and democratic method they choose, following the same approach as that agreed for other Select Committees on 4 March 2010. In consequence, we are, if the House agrees, removing the provisions in Standing Orders for elections of members of the Committee other than the Chair. The amendments in the name of the hon. Member for Wellingborough (Mr Bone) and others would remove the provisions whose purpose I have described and retain the current arrangements. Given what I have said, it will be no surprise that I will not support those amendments, but it is open to the House to do so if it wishes.

The second element of the motion relates to the Chair of the Committee, and I have already indicated why I believe that it introduces a beneficial change. The Government believe that it would not be appropriate for a Member from the governing party, or parties, to be nominated for the Chair of the Backbench Business Committee, because that might give rise to the Government’s appearing to seek to influence a key position in the House in an improper way. Having an Opposition Member chairing the Backbench Business Committee headlines the Committee’s independence not only from the business managers—of whom I am one, on behalf of the Government—but the influence of the Government party generally. My right hon. Friend the Member for Saffron Walden (Sir Alan Haselhurst) stood for the post of Chair in 2010, when the hon. Member for North East Derbyshire (Natascha Engel) was elected, and his wisdom and experience have subsequently been deployed in his service as Chair of the Administration Committee. However, conventions evolve over time, and we think the time is now right to recognise that the Chair should be held by an Opposition Member.

At the same time, we are taking the opportunity to remedy an anomaly in the Standing Order that was identified by my hon. Friend the Member for East Dunbartonshire (Jo Swinson) and referred to by the hon. Member for Perth and North Perthshire during the debate on 15 June 2010—namely, that at present no Member can be nominated for the Chair unless he or she belongs to a party with at least 11 Members of this House. I acknowledged on that occasion that my hon. Friend and the hon. Gentleman had identified a possible defect in the Standing Order that needed to be considered, and I am pleased to move this motion to remedy it—[Interruption]—despite the protestations of the hon. Gentleman who, it seems, is never satisfied. We propose to replace it with a provision that requires cross-party support of comparable strength but allows Members from minority parties to stand for Chair of the Committee.

Finally, the motion makes provision for hon. Members from parties not represented on the Backbench Business Committee to participate in its work. The motion allows the Committee to invite an hon. Member who does not belong to a party represented on it to participate in its proceedings, including deliberative sessions, but not to vote. It would be for the Committee to decide whether to invite one hon. Member for a Session or a shorter period or to invite different hon. Members to different meetings. [Interruption.] The Government believe that this effectively addresses minority party concerns—although clearly, according to the hon. Member for Perth and North Perthshire, it does not—in a manner consistent with the principle that the composition of the Committee should reflect the party composition of the House. The hon. Gentleman protests from a sedentary position that it does not reflect it because he wants full membership of the Committee, but that is not the way in which this House has determined its membership of Select Committees, whereby such membership reflects the composition of the House as a whole. It seems to me that that principle of proportionality is something that the House would wish to maintain, because otherwise it becomes open to the House to distort the composition of the House as represented in the membership of its Select Committees, and I am not sure that the Backbench Business Committee should be separate from that consideration.

We made it clear in our response to the Procedure Committee, which was published last month, that we do not agree with the proposal for full membership for a minority party Member. Our proposal allows for the participation of hon. Members from different parties, as and when the Backbench Business Committee considers it appropriate, whereas the amendments would provide for only a single hon. Member to participate. That is why we oppose the amendments tabled by the hon. Member for North East Derbyshire and others.

The amendments tabled by my hon. Friend the Member for Birmingham, Yardley (John Hemming) would apply the principle of whole-House elections to the election of a minority party Member. That is instructive about the conduct of this whole debate. Were the amendments tabled by the hon. Member for North East Derbyshire and the amendments to them tabled by my hon. Friend the Member for Birmingham, Yardley successful, the larger parties in the House would determine not only which Member from the minority parties would appear on the Committee, but which party would be represented. That would put the larger parties in the inappropriate position of deciding whether it should be a Member from the Democratic Unionist party, the Scottish National party or Plaid Cymru who was selected for the position. That amply demonstrates what is wrong with the current system of elections.

In conclusion, the motion will change the elections for the membership of the Backbench Business Committee and how Members participate in its work in a way that enables the Committee to continue to work effectively. It will make those changes at the right time—in fact, the only possible time—before the membership is settled in the next Session. The motion will facilitate the Committee’s effective operation in the future and I commend it to the House.

16:46

[Angela Smith (Penistone and Stocksbridge) (Lab)]

It is appropriate that I start my comments, which I promise will be brief, by drawing attention to the success of the Backbench Business Committee so far. That needs to be put on the record. A wide range of topics has been introduced to the House via this mechanism, some of them as a result of the e-petitions process, with which we are now all familiar. Of course, one particular subject was not allowed to be debated in the Chamber, and the reasons for that are well known.

There have been 39 days of Back-Bench debate in the Chamber and 16 in Westminster Hall. The impact has been considerable and has outweighed the number of days that have been allocated. There have been challenging debates on a range of issues and there have been six votes, including two on Afghanistan, one on contaminated blood, one on the regulation of financial advisers and one on accountability to the House. All those are important topics that would not have been debated or voted on if we had not had the Backbench Business Committee. The House would therefore not have been able to express its view.

One of the two most memorable debates was last year’s debate on wild animals in circuses. The decision of the House, without a vote, was that wild animals should be banned in circuses. The view of the Opposition is that the wild animals in circuses may die of old age before they are banned if the Government have their way.

Perhaps the biggest and most profound debate was on the Hillsborough disaster, which was held in the House last autumn. I was proud to take part in that debate, and in my view, it showed the House at its finest. It was a moving debate that consolidated the growing view that the Hillsborough disaster requires open and transparent examination, especially in relation to the records that are given over to the inquiry, and that no stone should be left unturned in revealing the truth of what happened on that day. The House played an important part in confirming the view of the establishment, if one wants to call it that, on that point.

The Backbench Business Committee is clearly a useful new mechanism for strengthening the effective scrutiny of Government by the Commons. We support the motion because it follows the example set by the new arrangements for Select Committee membership, which were hard fought for. Those arrangements determine that the membership of Select Committees should be decided by elections involving all Members of the House. The new Select Committee procedure, which will apply to the Backbench Business Committee if the motion is passed, gives Back Benchers on both sides of the House the opportunity to determine their own representation on Committees. Equally importantly, it allows them to do so without interference by any other party.

[Stewart Hosie (Dundee East) (SNP)]

The hon. Lady says that the motion will give parties on both sides of the House the ability to select their Committee members without interference by anybody else. In fact, it will give three parties in the House the ability to select their members. It ignores the representatives of the other six parties. The Social Democratic and Labour party, Plaid Cymru, the Scottish National party, the Alliance party, the Green party and the Democratic Unionist party will have no ability to select members. Does she not think that she should have thought the matter through a little more carefully, or is this just about the Labour party Whips controlling their Members, in the same way as it is about the Tory Back Benchers being controlled by their Whips?

[Angela Smith]

Perish the thought. I would argue, actually, that the motion gives minority party Members more right to representation on the Backbench Business Committee.

[Mr Nuttall]

Does the hon. Lady agree that there would be a problem if the motion were accepted, in that two elections would take place, one among Government Members and one among Opposition Members? The rules provide that two female Members have to be elected to the Committee. How would that work in practice? How would it be determined who the two female Members should be?

[Angela Smith]

It is a minimum of two women, and the Opposition have plenty of very good women who would put their names forward. In my view, women on the Labour Benches are equally likely to be represented on the Committee as our male colleagues, if not more so.

[Mr Peter Bone (Wellingborough) (Con)]

Will the hon. Lady give way?

[Angela Smith]

Very briefly, but then I must make progress, because I want to give Back-Bench Members time to make their contributions.

[Mr Bone]

As I understand it, the Government’s proposal will do away with the gender balance on the Committee. Does the hon. Lady support that?

[Angela Smith]

The Opposition will have a quota to provide gender balance on the Committee, because we are committed to equality when it comes to gender representation in the House. We are proud of the fact that we follow that principle.

The motion will also abolish the prohibition on members of minority parties standing for the position of Chair of the Committee, which is an important improvement. That is provided, of course, that they are not members of any governing coalition, which is an equally important improvement.

A Procedure Committee inquiry on the Backbench Business Committee is ongoing. We seek assurances that there will be an opportunity at the appropriate time for the House to take a view on any recommendations arising from that report, with adequate time provided. I believe that the Government have already conceded that point to some extent, but I should like to hear more about it when the Minister concludes the debate.

We cannot support the amendments, because they are incompatible with the Select Committee membership arrangements that are already in place.

I shall conclude now, because I wish to give Back-Bench Members adequate time to contribute.

[Several hon. Members]

rose—

[Mr Speaker]

Order. It is clear that several Members wish to speak, and we have, I think, only 53 minutes for them to do so. There is no formal time limit on Back-Bench speeches at this stage, but a certain self-denying ordinance would be widely appreciated.

16:53

[Mr Peter Bone (Wellingborough) (Con)]

I rise to speak against the motion, largely in sadness and regret, because I will have to criticise those on the Government Front Bench, particularly the Leader of the House and the Deputy Leader of the House. I could do that in 10 seconds, because as we have already heard, Government and Opposition Front Benchers support the motion on the Backbench Business Committee, so we could almost say, “When the two Front Benches agree, it’s a clearly a stitch-up and can't be right for the House”—and sit down.

This attempt to alter Standing Orders on the Backbench Business Committee to suit the Executive is absolutely outrageous. It is an attempt by the Executive to ignore Parliament and to impose their will on the House. What is particularly shocking is that they are trying to interfere with business that is exclusively Back-Bench business. Such business has no relevance whatever to the Government.

The Government’s actions fly in the face of the House of Commons Reform Committee report, “Rebuilding the House”, HC1117, which proposed what are known throughout the House as the Wright reforms. Those reforms were designed to restore trust in Parliament and to reduce the power of the Executive. They were the very reforms that the Leader of the House and the Deputy Leader of the House supported so vigorously when they were in opposition. I am sad to say that it has taken less than two years for the Government to do a U-turn and go back to the bad old days of the Executive trying to tell Parliament what to do. There have been several signs over the past few months that the Government are adopting the policy of always knowing right and of assuming that Parliament is there only to rubber-stamp their decisions. This motion is the clearest and most obvious breach of their commitment to put Parliament first.

One of the most shocking and shameful aspects of the debate is its timing. The Leader of the House put the motion on the Order Paper without any consultation with the Backbench Business Committee. Even more significantly, he did so only hours after the Committee met, so that it could not formally consider the issue. He has also tabled the debate and vote prior to tomorrow’s Committee meeting. He has deliberately slighted the Committee, which meets weekly, by putting the motion on the Order Paper hours after last Tuesday’s meeting and before tomorrow’s meeting.

What is even more reprehensible is that the Committee is reviewing its operation so that it can report to the House and provide evidence to the Procedure Committee’s inquiry. The Government’s timing is the most disgraceful discourtesy to the Backbench Business Committee. The Leader of the House is saying to the Committee: “I want to sneak this through before your Committee can formally protest.” That is devious, undemocratic and a disgrace to the Government.

I shall now turn to the crux of the matter—this is why the motion should be defeated. The Procedure Committee, chaired so ably by my right hon. Friend the Member for East Yorkshire (Mr Knight), who is in his place, announced on 21 February 2012 that it was launching a review of the operation of the Backbench Business Committee in accordance with a previous motion agreed by the House of Commons. The review was

“in particular to inquire into…issues relating to the membership of the Committee…the amount of time available to the Committee and the way in which the Government allocates that time…the powers of the Committee, and the process by which the Committee determines the matters to be debated in backbench time.”

The closing date for submissions was Thursday 8 March. Let us dwell on that for a moment. Thursday 8 March was two days after the Government tabled their motion and decided what the House would do. At best, that was a shoddy attempt by the Government to ignore a Select Committee; at worst, it was an attempt by the Government to interfere with a Select Committee, which could give rise to a number of issues for the Minister, possibly including a breach of the ministerial code and referral to the Standards and Privileges Committee. The Government might think that they can ignore the will of Parliament, but this is a different Parliament from previous ones. This Parliament is willing to stand up to an all-powerful Executive.

As the House is aware, Members were requested to send representations to the Procedure Committee by last Thursday. The first three things they were asked to consider were:

“The composition of the Committee and the process for electing its members; whether the Chair of the Committee should be reserved for an opposition Member; whether a place on the Committee should be reserved for the minority parties.”

The top three issues, then, that we were asked to consider and report on to the Procedure Committee by last Thursday are exactly the three issues that the Government are trying to shoot through Parliament today.

The Executive have decided, without waiting for the Procedure Committee report, that Committee members will be elected by party groups and that the Chair of the Committee will be an Opposition Member, and they have completely fudged the issue of the minority parties. The Government have predetermined the Procedure Committee’s inquiry before it has had time to collate the written evidence, take oral evidence and consider its report.

[Mr Baron]

Does my hon. Friend agree that the Government’s explanation—that they had to push this through prior to an election—runs rather shallow given that, unlike for other Committees of the House, elections are every Session, so these proposals could quite easily have been postponed for a year until the next elections?

[Mr Bone]

Of course that is the case. These elections will determine the Backbench Business Committee not for the term of the Parliament but for a year. If the Procedure Committee happened to report after the next elections and there was a change to procedure, the elections afterwards could be run on the new system. There was absolutely no need to prejudge the Select Committee report, apart from the fact that it might have resolved matters differently from what the Government wanted.

[Mr Knight]

May I place it on the record that the Procedure Committee will in no way feel inhibited by what is determined today? Does my hon. Friend agree that what the House decides today it can later decide to undo or amend?

[Mr Bone]

I am grateful for my right hon. Friend’s comments. Nobody who knows him will think that this sort of ploy could possibly affect what his Committee does.

I turn to one of the most appalling aspects of today—the whipping on the Conservative Benches. There is no question but that this is House business, and there is no question but that it is Back-Bench business. By convention, such votes should not carry a Whip; they should be free votes. There is no way that the Executive should try to instruct the House how to organise Back-Bench business affairs, but Conservative Members were told last week that we would be on a three-line Whip to vote for this outrageous motion. After protests, the Whips Office reduced it to a one-line Whip. [Laughter.] The hon. Member for Rhondda (Chris Bryant) laughs, and of course he knows why the Whips Office did that: to keep Back Benchers away from the House. I have received a very nice text from a Member saying, “I’m out working in my constituency. Aren’t the xxx Whips very devious?” That is very true.

After our protests, then, the Whips Office reduced the vote to a one-line Whip, but that is not a genuine free vote, because Members here will still be instructed how to vote. This is wrong, should not be happening and flies in the face of the coalition Government’s pledge to restore trust in Parliament. Even worse, I understand that Ministers and Parliamentary Private Secretaries are on a three-line Whip to vote through this despicable motion. The very people who should have no interest in Back-Bench business are the ones who are being told to vote for the changes. I am more than happy to take an intervention from the Leader of the House if that is not the case. [Interruption.] I see he does not want to intervene. This really is going back to the bad old days.

[Mr William Cash (Stone) (Con)]

Is my hon. Friend aware that some years ago, in an extremely important book called “The Commons In Transition”, a former Clerk of the House said that the root of all the trouble with Standing Orders and whipping was collusion between the two Front Benches in the 1880s in order to take control of Standing Orders away from the Speaker? In those days it was the Speaker who determined these questions, which preserved the integrity of the House.

[Mr Bone]

I am grateful for my hon. Friend’s intervention, but I think you would admonish me if I went down that route, Mr Speaker, as it is a little wide of today’s debate, although I must say that it has much merit.

[Mr Speaker]

I might not.

[Mr Bone]

Thank you, Mr Speaker.

I turn to the amendments in my name and five of the seven other members of the Backbench Business Committee, including the Chairman. The purpose of amendments (d), (e) and (f) is to leave out the Government’s proposed changes to the election of Backbench Business Committee members. The Government are proposing that future members of the Committee will be elected by party group. There are two distinct disadvantages to that proposal. The first—I suggest that this is the reason for it—is that it will give the Government, as well as the shadow Government, greater influence in deciding who is elected to the Backbench Business Committee. Through their Whips Offices, they will try to engineer more pliable Members to be elected to the Committee. I believe that this will make the Committee much more divided on party lines. In all the time that the current Committee has met, there has been only one vote, and that did not divide it along party lines. The Government’s proposal will reduce the likelihood that independent parliamentarians will be elected to the Committee.

Secondly, the authority that members of the Committee hold is greatly enhanced by their being chosen by the whole House. Their mandate comes from Back Benchers of all political persuasions, not by a narrow party group. The Wright Committee was clear on that issue, saying in paragraph 180 of its report on page 54:

“We therefore recommend that a Backbench Business Committee be created. It should be comprised of between seven and nine members elected by secret ballot of the House as a whole”.

So there we have it: the Wright report recommends that individual members of the Committee should be elected by the whole House, not by party groups. That is what the House agreed when setting up the Backbench Business Committee—the House agreed with the Wright Committee. Now the Government want to change Standing Orders while a Select Committee is looking into the matter, and against the wishes of the Wright Committee and an earlier decision of the House.

In conclusion, I therefore wish to press my amendments, and if they are not accepted by the Government, I will seek your leave to divide the House, Mr Speaker. I will also be supporting the amendments in the name of the hon. Member for North East Derbyshire (Natascha Engel). I would urge Members both to support the amendments and to vote against the motion.

[Several hon. Members]

rose—

[Mr Speaker]

Order. Several Members are seeking to catch my eye, so I give notice to the House that after the next speaker whom I intend to call—the Chair of the Backbench Business Committee—I will impose a time limit of four minutes on Back-Bench contributions, because I am keen to facilitate as many Back Benchers as possible. However, that will not apply to the next speech.

17:08

[Natascha Engel (North East Derbyshire) (Lab)]

I will keep my comments brief, in order that Back Benchers are given a bit more time.

I am deeply disappointed that the Government have tabled this motion without consulting either the Procedure Committee or the Backbench Business Committee. It goes absolutely against the spirit of the sort of relationship that has grown up between the Backbench Business Committee and the Government. The fact that motions affecting the Backbench Business Committee’s operation have been tabled while the Procedure Committee is still looking at that matter in detail and asking people far and wide, inside the House and beyond, for their ideas means that today’s debate cannot be as informed as it should be. Furthermore, to allocate one and a half hours for such a debate is laughable. Members are being asked to make decisions on matters that require much more information.

The Backbench Business Committee will produce its report either this week or next week. The Procedure Committee could work much more quickly on its review of the operation of the Backbench Business Committee if it needed to, and could report very quickly on it. If the Government were willing to withdraw the motion, I am certain that we would benefit from a debate informed by the end-of-term report from the Backbench Business Committee and by the Procedure Committee’s report, well before the end of the Session and timed to coincide with the elections to the Backbench Business Committee. Will the Minister tell us whether the Government are willing to consider withdrawing the motion and having a debate on these matters on another day? I am sure that the Chairman of the Procedure Committee, the right hon. Member for East Yorkshire (Mr Knight) and I would work very quickly to produce our Committees’ reports in order to facilitate such a debate.

The amendments tabled in my name deal with the minority parties. This matter has been a running sore to the Backbench Business Committee. We are, by accident, a Committee of Members from England. We have three members from the east midlands region, and we are an entirely English Committee. We could be far more representative not only of Back Benchers but of the country as a whole if the minority parties were more actively involved.

[Mr Mark Williams (Ceredigion) (LD)]

As a Member from Wales, I endorse what the hon. Lady has just said. She will be aware that the leading characters from Wales came to her to put their case for a St David’s day debate, and I am happy to report that the English members of the Committee yielded to that request, but it took two years to achieve that. The point that she makes about geographic spread is an important one.

[Natascha Engel]

Indeed. Such representation would give added flavour to the Backbench Business Committee.

[Pete Wishart]

It is more than that; the Committee must be for Back Benchers of the whole House, not just those of the Government parties and the Labour Opposition. There are five other political parties in the House; surely they should be represented if it is to be a Back-Bench Committee of the whole House.

[Natascha Engel]

That goes to the heart of the amendments. The minority parties are Back Benchers. They can never really be Front Benchers. It is very unlikely that we will ever see a member of one of the minority parties at the Dispatch Box.

Using the principle of proportionality is also wrong. The Committee has four members from the Conservative party, one from the Liberal Democrats and two from the Labour party, plus the Chair, who has a casting vote. An additional member from one of the minority parties would not automatically lose the Government their majority—certainly not during a coalition Government, and I see no reason why we should not consider expanding the number of members of the Committee if there were not a coalition.

The Backbench Business Committee is different from other Select Committees, in that it represents all Back Benchers of the House. At the moment, however, we do that very poorly by not having representation from the minority parties. The Procedure Committee’s report of October 2011 recommended that these changes be made, and that an additional place on the Backbench Business Committee be created in order that the minority parties be given representation. The right hon. Member for East Yorkshire has just made the point that, after the Procedure Committee had reported, we could table motions to amend what had been decided today. That is sort of true, but only the Government are able to table motions that affect the Backbench Business Committee. Quite rightly, we as a Backbench Business Committee cannot table motions that affect our own operation. What the right hon. Gentleman says is rather difficult unless it is within the Government’s agreement that the motions are tabled. That worries me. That brings me back to asking why the Government cannot simply wait until the Procedure Committee has produced its report and the Backbench Business Committee has told the House about its experiences in the one and a half years of its existence.

Let me briefly support the amendment tabled by the hon. Member for Wellingborough (Mr Bone) that deals with the issue of the whole House participating in the elections. This goes back to the point that the Backbench Business Committee is somewhat different from other Select Committees, in that it represents all Back Benchers. Therefore, the whole House should have a say in who it wants on the Backbench Business Committee.

[Mr Graham Brady (Altrincham and Sale West) (Con)]

The hon. Lady and I both served on the Wright Committee, and I am sure that she remembers, as I do, that it was very much that Committee’s deliberate intention to achieve a cultural change in the House of Commons. Part of that was precisely the issue of the Backbench Business Committee being elected by and representing the whole House, not individual parties.

[Natascha Engel]

That is absolutely right. We should not throw away that important principle today. I am worried by the fact that the Government have tabled these motions. There has been inadequate time to look at them and inadequate time to explore all the different consequences arising from them. We are dealing with something that is not broken, so I do not understand why the Government want to fix it.

[Mr Leigh]

Apparently, some people in the Government think that under the current arrangements the Labour party can gang up to ensure that so-called troublemakers are on this Committee. Is that not to politicise the whole issue? The fact is that members of the Committee are independent. They are not troublemakers; they are independent-minded people. We should keep party politics out of this.

[Natascha Engel]

That goes back to my point that the Backbench Business Committee is not broken. We do not vote on party lines and the discussions we have are not on party lines. Its members are independent-minded. They are members of different political parties, but the wider issue is about how we best represent Back Benchers as a whole. We currently have a spread on the Committee, with every type of Back Bencher in today’s Parliament represented.

I urge Members to vote for the amendment that includes the minority parties as full voting members. We do not want them to be there only as a result of some kind of patronage of the Chair which allows them to attend and listen to the Committee’s words of wisdom. We want them to have full membership and full voting rights. I also urge support for the amendment tabled to allow the entire House to vote on who should represent Back Benchers on the Backbench Business Committee.

[Several hon. Members]

rose—

[Mr Speaker]

Order. A four-minute limit applies, but I remind Members that they are not obliged to speak right up to that limit.

17:17

[Mr John Baron (Basildon and Billericay) (Con)]

I find the proposals in the Government’s motion to be very unfortunate, as they are bringing party politics into this place when dealing with Back-Bench business matters. That is, as I say, most unfortunate—and, more importantly, it will be viewed as unfortunate by people outside this place, too.

I suggest that a key aspect of the reassertion of Parliament was the formation of the Backbench Business Committee, which has proved—neither the Government nor Opposition Front-Bench Members have been able to suggest otherwise—to be an excellent method of holding the Executive to account, ensuring that matters of importance are debated here, at times against the wishes of the Government. I have heard no evidence from anybody that the Backbench Business Committee is not working well.

I have my own reasons to be grateful to the Backbench Business Committee. The full-day debate that I led on Iran on 20 February was the first time that the subject had been debated for many years. Whatever the views across the House, it was a good day for parliamentarians. It was a packed debate; we ran out of time; we heard many excellent contributions, including from former Foreign and Defence Secretaries. It was deemed by everyone who participated in the debate to be well worth while. At the time, the Government opposed it; they opposed even the wording of the motion, as we saw.

It is therefore very regrettable that the Government have pre-empted the findings of the Procedure Committee’s inquiry into the operation of the Backbench Business Committee by producing their own recommendations today. The response from those on the Front Bench that they had to do it now, because if they did not it would be too late for the election, is complete and utter nonsense. The elections come round every Session: they come round every year. There is no real reason why the Government’s suggestions could not have waited until the Procedure Committee had presented its recommendations, and perhaps they could then have influenced the elections next year.

I am afraid that, whatever my right hon. Friend the Leader of the House may say from the Dispatch Box, the justification does not stack up. There can be no doubt that implementation of the Government’s proposals would result in a weakening of the Committee. It would take power away from the Back Benches and Parliament and hand it back to the Executive, and that cannot be right. This is all about control.

Finally, let me say something about the question of who selects the Chairman and Committee members. Surely all those who are selected as members of the Committee would have far more authority if they were elected by the whole House, rather than by party groups. That would enable the Committee to perform its role even better, with greater justification and, I would suggest, with greater credibility and integrity as well.

17:20

[Pete Wishart (Perth and North Perthshire) (SNP)]

You will recall, Mr Speaker, the sense of disappointment, outrage and anger two years ago, when we first learned of the membership of the Backbench Business Committee. We had been excluded, as though we did not exist. We were not entitled to a place on the Committee. That would not have been so important had it been just another Select Committee of the House—we expect to be excluded from those, because that is what the arithmetic does—but for us to be excluded from the Backbench Business Committee, a Committee of Members acting for other Members, was absolutely and utterly ridiculous.

When we complained, we were reassured. I was told, “Don’t worry, Pete, it will be fine. As soon as we have the first opportunity to review this, we will put it right and ensure that it is fixed. We will have a place for you on the Committee.” And what did we get? Observer status. This is not the United Nations; this is the House of Commons, one of the Houses of Parliament. We do not do observer status in this place. What a ridiculous and utterly fatuous notion! We demand a place on this Committee.

[Dr William McCrea (South Antrim) (DUP)]

Will the hon. Gentleman give way?

[Pete Wishart]

I am sorry; I do not have enough time.

I could stand for the position of Chair of the Committee, but I have as much chance of becoming its Chair as the Deputy Leader of the House has of becoming the SNP Member for Somerton and Frome. There is no chance whatsoever of a member of one of the minority parties being allowed—

[Mr Heath]

Will the hon. Gentleman give way?

[Pete Wishart]

I will give way briefly to the Deputy Leader of the House.

[Mr Heath]

If it is of such little consequence that the hon. Gentleman could stand for the position of Chair, why on earth did he make such a song and dance about it two years ago?

[Pete Wishart]

What we were making such a song and dance about was membership of the Committee. I should be delighted to be able to stand for the position of Chair of the Committee as a member of the Committee, but for me to be able to stand for that position without having a place on the Committee is utterly and absolutely ridiculous.

We in the minority parties will have to have a think about this. We cannot have a Backbench Business Committee of some of the House; it must be a Backbench Business Committee of the whole House. We decided that we would involve ourselves with the Committee over the last two years, despite our great disappointment about what happened. We were reassured by the Chair, who has been fantastic with the minority parties, and who has been able to work with us to ensure that we could at least secure some of our debates. However, we will now have to take a good long look at our relationship with the Committee. I suggest to other members of the smaller parties that we should be saying, “If you, the House, do not want us, why on earth should we have anything to do with you?” If this is to be a Back-Bench Committee consisting exclusively of members of the Government parties and the Labour Opposition, why should we have anything to do with it at all?

We must ensure that the Backbench Business Committee is a Committee of the whole House. The present arrangements are nonsense, the idea of observer status is absurd, and I appeal to the House to back the amendments and ensure that we have equality in the House. There are five other political parties here. There is more than just a Labour Opposition; there are other members, there are other parties, and we must ensure that we are properly represented in the House. The Wright Committee has been a disaster for the smaller parties. We have effectively been turfed out of Select Committees, and now the same is happening with other Committees in the House.

I urge Members to back the amendments. I urge them to ensure that there is justice for the smaller parties, and to ensure that we have a Backbench Business Committee that represents the whole House.

17:24

[John Hemming (Birmingham, Yardley) (LD)]

I am a glutton for punishment, because as well as being a member of the Regulatory Reform Committee and the Joint Committee on Statutory Instruments, I serve on the Backbench Business Committee and the Procedure Committee, so I follow the deliberations on these matters through the entire process.

I agree with the hon. Member for Perth and North Perthshire (Pete Wishart) that the BBC should be a Committee of, as it were, the whole House. The Member who communicates with the minority parties should be a full Committee member and be elected by the whole House. I drafted a couple of technical amendments that would have ensured that the election for Committee members of the minority parties would have been the same as the election for those of the other parties, so that all are elected by the whole House. One reason for suggesting that is that not all political issues are party political.

Essentially, the Government and Opposition Front-Bench teams are trying to shift the balance of power back towards the Executive. Let us consider the elections at the start of this Session. I was uncontested as the Liberal Democrat representative, and the four Conservatives were also uncontested. There were three candidates to be the two Labour representatives, but there have not been any by-elections since. We could therefore argue that the proposal under discussion may not make any difference. In practice, however, it is still moving away from the recommendations of the Wright report, which state that Parliament should operate as a Parliament, and not do everything divided along party lines. We need representatives from the parties to make sure that systems of communication are in place and that Members know that there is somebody they can talk to.

[Dr McCrea]

Will the hon. Gentleman acknowledge the following fact: every other region of the United Kingdom can be represented—there can be a member from Wales, a member from England, a member from Scotland—but none of the three major parties have representatives from Northern Ireland? Who will speak with authority for the people of Northern Ireland?

[John Hemming]

That is why I think it is important to have somebody from the minority parties elected by the whole House as a full member of the Committee. There has been one vote on one issue, and the rest of the decisions have, in effect, been made by consensus. In a House business committee, there would, obviously, have to be a Government majority. In this case, however, there is clearly no need to add an extra Member of the Government parties when adding a full Member communicating with the minority parties.

My point is that the idea of having a BBC representing the Back Benchers of the whole House and elected by the whole House has worked very well and should not be changed.

17:26

[Chris Bryant (Rhondda) (Lab)]

I think the Leader of the House has, in general, been an excellent Leader of the House; since he took up his post after the general election, he has, broadly speaking, done a good job, as has the Deputy Leader of the House. I therefore feel sorry that today is not a day when we are able to praise the Leader of the House, as I think the proposals he has come up with are ill considered and ill timed. I think that he has let himself down, to be honest.

I say that because we are now coming to the end of a two-year Session. This will, I believe, be the longest parliamentary Session since 1643. That has given additional power to the Government, as they have been able to keep on having a go at getting legislation through in the other place. That is why we are still having a row about the health service Bill. If we had not had a two-year Session, many of its elements would have been ditched long ago—and likewise in respect of many other pieces of proposed legislation.

The Backbench Business Committee has been a genuine success, however. As has been said, the timing of this proposal is wrong because the Procedure Committee has not yet completed its business. The proposal is therefore a bit of an affront to it. Also, the Government had plenty of time to organise for today. They could have set about this process months ago, because we always knew that another set of elections was going to be held at the end of the second year. We could have started this process six months ago rather than recently.

I also point out to the Leader of the House that the coalition agreement says that there will be a House business committee by the third year, which starts in a few weeks’ time. We therefore should, in fact, be debating the House business committee tonight, not the Government trying to seize a bit of power in relation to the BBC.

The amendments tabled by the hon. Member for Wellingborough (Mr Bone) and my hon. Friend the Member for North East Derbyshire (Natascha Engel) go to the heart of what it is to be a Member of Parliament. Every single one of us can be partisan. I can be extremely partisan on occasion. [Interruption.] Indeed, other hon. Members can be partisan, too. That is not wrong, as we were all elected on party tickets. My constituents in the Rhondda do not vote for me because I am a lovely, decent chap. [Interruption.] I think I have carried the House on that. They vote for me because they want a Labour Government and a Labour person to be elected.

Of course, that partisan element of how we do our business and the way we tussle in the Chamber is part of making sure that the Government do a better job. I have no problem with being partisan, but we also have to rise above being partisan on occasion. We have sometimes let ourselves down on that and it is where the Leader of the House is doing so on this matter. It was a sadness that Robin Cook never managed to get some of these things through previous whipping organisations when we were in government, but it was a delight when people who were standing for election by the whole House—the Chairs—were lobbying all Members of the House; they actually wanted a mandate and wanted to understand what all the Members of the House thought. Surely that is why it is better that the members of the Backbench Business Committee should be elected by the whole House, not just by their individual parties.

I launched my “save the backbench three” campaign last Friday because of a concern. The Committee has done a good job, having given us the best debates this year, whereas the Government have given us some pretty poor debates during the past year and for the past few months they have given us hardly anything to do at all. I fear that next year’s business will be a waste of time, unless we keep the “backbench three”.

[Several hon. Members]

rose—

[Mr Speaker]

Order. Five Members are seeking to contribute and I would like to accommodate them all. I do not know that I shall succeed, but brevity is of the essence.

17:30

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

It is a good thing that Chief Whips are not required to speak in these debates. We have heard some full tributes to the work of the Backbench Business Committee from the Deputy Leader of the House and his shadow, and I would be very surprised if the Government Chief Whip would be able to utter the same words of praise and thanksgiving for the work of the Backbench Business Committee, because the Committee has been an utter pain for the Government Whips Office. It is no good the hon. Member for Penistone and Stocksbridge (Angela Smith) nodding her head, because the Committee has been bringing to the Floor of the House issues that very often neither Front-Bench team wanted brought here—they wanted to suppress them. That has been the great strength of this Committee.

If the coalition Government have a problem with who was elected to the Backbench Business Committee or how it was elected, they have nobody to blame but themselves, because some posts went uncontested. That shows a remarkable lack of assiduousness, given how the Whips Offices usually try to influence such elections. We should have no doubt that this operation today is an exercise designed to reduce the accountability and responsiveness of the Committee.

Let us briefly consider the detail of the motion. Most important is the proposal that the regularity of elections will reduced: they will be held once per Parliament. If this motion goes through, the election in the new Session will be the last this Parliament—

[Mr Heath]

No.

[Mr Jenkin]

I beg my hon. Friend’s pardon if I misunderstood things, and I stand corrected.

The motion is also determined to reduce the way in which the membership of the Committee reflects the views of the whole House, on the basis of the spurious idea that parties voting for Members of other parties have a malign intent. The Chair is to be chosen from the Opposition, but that will reduce the Chair’s authority. The great authority that the hon. Member for North East Derbyshire (Natascha Engel) has is that she was elected as much by the votes of Conservatives and Liberal Democrats as by the votes of the Labour party. She was not a choice predetermined by the Standing Orders of this House and it was not a predetermined choice that she was chosen from her party.

For all those reasons, we should want to defend the existing system, not least because the Wright Committee intended the election of the Backbench Business Committee and its Chair to be carried out on a different basis from the elections to the other Select Committees. The Deputy Leader of the House keeps saying that he has given a reason for needing to pre-empt the findings of the Procedure Committee. He may have given a “reason”, but it is an excuse and a motive; it is not a justification for pre-empting the findings of the Procedure Committee.

I wish to conclude by making a brief point. Those of us from the previous Parliament who went through—how shall I describe it?—the purifying fire of the expenses debacle came out of it determined that things should change in this House, that politics should change and that at least some of what happens in this House should be taken out of the ghetto of the Westminster political parties talking to themselves. Are we now seeing this House reverting to type? Are we seeing the vested interests beginning to reassert themselves? I urge this House to be ever more vigilant to make sure that that does not occur and ever more vigilant because we are seeing today how determined the forces of darkness in politics can be.

17:34

[Mr John Redwood (Wokingham) (Con)]

This debate is about power and those on the Front Benches are misguided in thinking that it will enhance ministerial power to seek to influence the way in which Back-Bench business is conducted against the interests of all the Back Benchers who have turned up and spoken in today’s debate. It is wrong of those on the two Front Benches to impose a Whip on Ministers and shadow Ministers—[Interruption.] I accept, then, that there is no such Whip on shadow Ministers, but we will see. We will study the Division results with great interest to see the view that shadow Ministers take. It is wrong for Front Benchers to seek to stop Back Benchers continuing with their arrangements in a timely way.

I share a common cause with my Front Benchers as I happen to think, as they seem to, that Ministers do not have enough power. I think that there is a danger that under any Government we could have Ministers in office but not in power, but the reason is not our powerful Backbench Business Committee and the fact that it makes them come to this House to discuss things that they do not wish to discuss. If Ministers do that well, it enhances their stature. The reason is that too many decisions are taken by the European Union, overridden by the European Court of Human Rights or taken by independent quangos. We have the Environment Agency, the Bank of England and United Kingdom Financial Investments; Ministers are very limited in what they can do. I would happily make common cause with those on my Front Bench in getting Ministers more power and think that many of my colleagues would take the same view. We would be cheering them if they came to this House and said that Ministers needed more power to settle our borders, sort out the problems with prisoners, deal with taxation or money supply and so on. We want it to be accountable power, however, which is why we want Ministers to have more power but think that they should come to the House of Commons to answer for how they exercise it.

Ministers should get real. They are in danger of being in office but not in power because they will not take the accountable power they need to improve our country and to make the necessary changes. Their problem is not the Backbench Business Committee; their problem lies elsewhere. I urge my right hon. and hon. Friends on the Front Bench to wake up and smell the coffee, as the phrase goes these days, and to understand that people want a strong, proud and independent Parliament and that people want their Ministers to come here to talk about the difficult issues on any day. They want Ministers to talk about the issue that they do not want to talk about today, because that is what matters and that is what is topical. A strong and confident Government can debate anything at any time about their conduct, their views and their policies and the more we make them debate it, the stronger their case should be. I want the Opposition to challenge them, I want the Backbench Business Committee to challenge them and, above all, I want the decisions that matter for our country to be made here by accountable Ministers.

17:38

[Mr David Nuttall (Bury North) (Con)]

There is absolutely no clamour from Back Benchers for any change in the method of election to the Backbench Business Committee. Let us be clear about that. I pray in evidence paragraph 59 of the fifth report of the Procedure Committee of this Session, which states:

“We have received no adverse comments on the arrangements for the elections to the Backbench Business Committee but there are two issues which have been raised in evidence to us which we now consider.”

One related to the representation of the minority parties and the Procedure Committee suggested adding a member to the Backbench Business Committee,

“to be elected by the whole House.”

The second issue was a rather technical matter relating to by-elections. There was no suggestion that the whole Committee and the nature of its members’ election should be changed.

I submit as evidence Standing Order 152(1), which states:

“Select committees shall be appointed to examine the expenditure, administration and policy of the principal government departments as set out in paragraph (2)”.

Paragraph (2) then lists 19 Departments; obviously, the Backbench Business Committee is not on that list. The Government have suggested today that the changes in the motion are needed to bring the Backbench Business Committee into line with other Select Committees. Incidentally, however, they also seek to differentiate the Committee from Select Committees when it comes to the length of membership. I understand why some Members might be confused about this. The Backbench Business Committee is and should be regarded as a Committee of the House and should be treated differently from Select Committees. On that basis, elections to it should be by the whole House and I urge Members to support the amendments of my hon. Friend the Member for Wellingborough (Mr Bone).

17:40

[Mark Field (Cities of London and Westminster) (Con)]

This has been a passionate debate and I agreed with much of what my hon. Friend the Member for Wellingborough (Mr Bone) and the hon. Member for North East Derbyshire (Natascha Engel) had to say. Perhaps they gave their case a little less credit by resorting to elements of hyperbole—indeed, there were hints of hysteria coming from the hon. Member for Perth and North Perthshire (Pete Wishart) —but I agree fundamentally with what they said. This Executive, like every other Executive and—this is even sadder to see—like the shadow Executive, have an unhealthy tendency to meddle in matters that are best left to Parliament. That should rightly be resisted and it is through the Backbench Business Committee that we try our best to resist.

Unlike any other Member who has spoken, perhaps, I think the motion is more of a curate’s egg. I believe that the Chairman of the Backbench Business Committee should be an Opposition Member. As has been pointed out, in the initial election, my right hon. Friend the Member for Saffron Walden (Sir Alan Haselhurst), who is a very good friend of mine and a distinguished parliamentarian, was pitted against the hon. Member for North East Derbyshire. I thought it would be very unhealthy for that role, particularly initially, to be in the hands of a former Deputy Speaker of 13 years’ standing who was therefore very much part of the establishment, so I voted with my head rather than my heart. Like every other Member who has spoken I have been extremely pleased with the outcome and I pay great tribute to the wonderful work that the hon. Lady does in chairing the Committee.

Let me pick up on the contribution of the hon. Member for Perth and North Perthshire. The Leader of the House would do well to recognise that every single party in the House of Commons is a minority party, and I think it is quite wrong that we are prescribing the rights of the minority parties. The suggestion in amendment (a), which I think would have come through with the Procedure Committee, that there should be a special member for all the minority parties, is something we should follow.

I also believe there are very good reasons why the Backbench Business Committee should have some anonymity rules, as has been suggested by Ministers, for the election of its members, because it is by its nature an anonymous Committee: it is a Back-Bench Committee looking at Back-Bench business. I say that as a member of the Intelligence and Security Committee, which, alongside the Select Committee on Standards and Privileges, has different election arrangements. Those anomalies are open to a certain amount of criticism but are, none the less, rightly tolerated. If we do not adopt that approach, we run the risk of having approved party candidates rather than those who have the broadest party support. I shall be supporting amendments (a) and (d). There are elements of the motion with which I agree, but I regret the way in which it has led to the rancour we have seen in the past hour or so in this debate.

17:43

[Mr Richard Shepherd (Aldridge-Brownhills) (Con)]

I recall that the Leader of the House was one of the most eloquent advocates of Dr Tony Wright’s proposed reforms in this area. I also remember a famous conference speech in which he said that we would not resort to guillotines in the manner that had happened in the past. I also remember that when I was a student, the constitutional writers of the time used to discuss and describe the role and function of the Leader of the House. Fifty years ago they would argue that it was the most important role in the management of the House of Commons. The Leader of the House brought the views of the House to the Government and would try and influence them in the interests of the House and in the interests of the Government. It is a divided position; it is not an easy one. Yet here we see on the Order Paper, in the name of the Leader of the House, a motion that clearly has not been the result of any form of consultation, but has come from the very bowels of Government to assert their own primacy yet again.

The debate is about the Backbench Business Committee. This is Back-Bench business, in a sense, yet we know the apparatus, as has been described by many Conservative Members, through which the motion has come about. It is not to the credit of the Leader of the House that his name is the first of the proposers.

The reforms have not been bad. They have been rather successful, and maybe it is their success that arouses fear. After all, we had a debate on a referendum. That is something that no Government—Labour or the present Government—would have tabled. We were able to discuss matters on which debate had been denied to Members for a very long time. I support much of the work of the Backbench Business Committee. It is essential that it carries on in future. I have always supported—

17:46

One and a half hours having elapsed since the commencement of proceedings on the motion, the Deputy Speaker put the Questions necessary for the disposal of the business to be concluded at that time (Order, 7 March).

Amendment proposed: (d), leave out paragraph (1). —(Mr Bone).

17:46

Division 485

Ayes: 105

---

Labour: 41
Conservative: 40
Liberal Democrat: 13
Scottish National Party: 4
Plaid Cymru: 2
Democratic Unionist Party: 2
Independent: 1

Noes: 186

---

Conservative: 141
Liberal Democrat: 27
Labour: 18

Amendment proposed: (a), at end of paragraph (1), after ‘choose’, insert:

‘; and that the members of those parties who would not otherwise be represented on the Committee, or of no party, should choose one Member to represent them on the Committee by a secret ballot of those Members’.—(Natascha Engel.)

Question put, That the amendment be made.

18:00

Division 486

Ayes: 101

---

Labour: 48
Conservative: 32
Liberal Democrat: 13
Scottish National Party: 2
Plaid Cymru: 2
Democratic Unionist Party: 2
Independent: 1

Noes: 166

---

Conservative: 134
Liberal Democrat: 20
Labour: 12

Main Question put.

18:13

Division 487

Ayes: 203

---

Conservative: 132
Labour: 50
Liberal Democrat: 21

Noes: 82

---

Labour: 36
Conservative: 29
Liberal Democrat: 7
Scottish National Party: 4
Plaid Cymru: 2
Democratic Unionist Party: 2
Independent: 1

Resolved,

That—

(1) this House endorses the principle that parties should elect members of the Backbench Business Committee each Session and thereafter when a vacancy arises in a secret ballot of all Members of that party by whichever transparent and democratic method they choose.

(2) Standing Order No. 122D (Election of Backbench Business Committee) shall be amended as follows—

(a) line 7, at end, insert—

‘(ba) No Member may be a candidate for the chair of the committee if that Member’s party is represented in Her Majesty’s Government.’;

(b) in line 12, leave out from second ‘of’ to end of line 14 and insert ‘a party represented in Her Majesty’s Government and no fewer than ten shall be members of a party not so represented or of no party’;

(c) line 28, leave out paragraph (2);

(d) line 64, leave out sub-paragraph (b); and

(e) in the Title, after the word ‘of’, insert ‘chair of’.

(3) Standing Order No. 152J (Backbench Business Committee) shall be amended as follows—

(a) line 7, leave out paragraph (3) and insert—

‘(3) The chair of the committee shall continue as chair for the remainder of the Session in which that person is elected as chair unless the chair is declared vacant by the Speaker under the provisions of Standing Order No. 122C (Resignation or removal of chairs of select committees) as applied by paragraph (3) of Standing Order No. 122D (Election of 25 Backbench Business Committee).’;

(b) in line 12, leave out ‘and members’;

(c) line 21, at end, insert—

‘(6A) The Committee shall have power to invite Members of the House who are not members of the Committee and who are of a party not represented on the Committee or of no party to attend its meetings and, at the discretion of the chair, take part in its proceedings, but—

(a) no more than one Member may be so invited to attend in respect of the same meeting;

(b) a Member so invited shall not move any motion or amendment to any motion, vote or be counted in the quorum.’.

Committee on Standards and Committee of Privileges

Monday 12th March 2012 Commons Chamber

[Madam Deputy Speaker (Dawn Primarolo)]

With the permission of the House, we will deal with motions 2, 3 and 4 together. I inform the House that Mr Speaker has selected the amendments to motion 2 in the names of Sir Alan Meale, Sir Paul Beresford and Natascha Engel. The amendments will be debated with the main motion and the questions necessary to dispose of the motion will be put at the end of the debate. We have approximately 45 minutes.

18:27

[The Leader of the House of Commons (Sir George Young)]

I beg to move, motion 2

That—

(1) The following new Standing Order be made, to have effect from the date specified in paragraph (6) of this order—

‘Committee on Standards

(1) There shall be a select committee, called the Committee on Standards—

(a) to oversee the work of the Parliamentary Commissioner for Standards; to examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Financial Interests and any other registers of interest established by the House; to review from time to time the form and content of those registers; and to consider any specific complaints made in relation to the registering or declaring of interests referred to it by the Commissioner; and

(b) to consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in any code of conduct to which the House has agreed and which have been drawn to the committee’s attention by the Commissioner; and to recommend any modifications to such code of conduct as may from time to time appear to be necessary.

(2) The committee shall consist of ten Members, and at least two and no more than three lay members.

(3) Unless the House otherwise orders, each Member nominated to the committee shall continue to be a member of it for the remainder of the Parliament.

(4) The committee shall have power to appoint sub-committees consisting of no more than seven Members, and at least two lay members, and to refer to such sub-committees any of the matters referred to the committee.

(5) Lay members may take part in proceedings of the committee and of any sub-committee to which they are appointed and may ask questions of witnesses, but lay members may not move any motion or any amendment to any motion or draft report, and may not vote.

(6) The quorum of the committee shall be five members who are Members of this House, and the quorum of any sub-committee shall be three members who are Members of this House.

(7) The committee and any sub-committee may not proceed to business unless at least one lay member is present.

(8) The committee and any sub-committee shall have power—

(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House and to adjourn from place to place;

(b) subject to the provisions of paragraph (9) of this order, to report from time to time;

(c) to appoint legal advisers, and to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.

(9) Any lay member present at a meeting at which a report has been agreed shall have the right to submit a paper setting out that lay member’s opinion on the report. The Committee shall not consider a motion that the Chair make a report to the House until it has ascertained whether any lay member present wishes to submit such a paper; and any such paper shall be appended to the report in question before it is made to the House.

(10) The committee shall have power to order the attendance of any Member before the committee or any sub-committee and to require that specific documents or records in the possession of a Member relating to its inquiries, or to the inquiries of a sub-committee or of the Commissioner, be laid before the committee or any sub-committee.

(11) The committee, or any sub-committee, shall have power to refer to unreported evidence of the former Committees on Standards and Privileges and to any documents circulated to any such committee.

(12) The committee shall have power to refuse to allow proceedings to which the public are admitted to be broadcast.

(13) The Attorney General, the Advocate General and the Solicitor General, being Members of the House, may attend the committee or any subcommittee, may take part in deliberations, may receive committee or subcommittee papers and may give such other assistance to the committee or sub-committee as may be appropriate, but shall not vote or make any motion or move any amendment or be counted in the quorum.’

(2) The following new Standing Order be made—

‘Lay members of the Committee on Standards: appointment, etc.

(1) Lay members shall be appointed to the Committee on Standards by a resolution of the House on a motion made under the provisions of this order and shall remain as lay members in accordance with the provisions of this order.

(2) No person may be first appointed as a lay member if that person is or has been a Member of this House or a Member of the House of Lords; and any person so appointed shall cease to be a lay member upon becoming a Member of this House or of the House of Lords.

(3) No person may be appointed as a lay member unless that person has been selected on the basis of a fair and open competition.

(4) A person appointed as a lay member may resign as a lay member by giving notice to the House of Commons Commission.

(5) A person appointed as a lay member shall be dismissed from that position only following a resolution of the House, after the House of Commons Commission has reported that it is satisfied that the person should cease to be a lay member; and any such report shall include a statement of the Commission’s reasons for its conclusion.

(6) Subject to the provisions of paragraphs (2), (4) and (5) of this order, a person appointed as a lay member shall continue as a lay member for the remainder of the Parliament in which that person was first appointed.

(7) A person first appointed as a lay member who has been a lay member for the remainder of one Parliament may be re-appointed by a resolution of the House in the subsequent Parliament, and the provisions of paragraph (3) of this order shall not apply to any such re-appointment. The period of re-appointment shall be specified in the resolution of the House for reappointment and shall not exceed two years from the dissolution of the Parliament in which the person was first appointed as a lay member, and a resolution under this paragraph shall cease to have effect on the dissolution of the Parliament in which the resolution of the House for reappointment was made.

(8) No person may be re-appointed as a lay member other than in accordance with the provisions of paragraph (7) of this order.

(9) No motion may be made under the provisions of this order unless—

(a) notice of the motion has been given at least two sitting days previously, and

(b) the motion is made on behalf of the House of Commons Commission by a Member of the Commission.

(10) The Speaker shall put the questions necessary to dispose of proceedings on motions made under the provisions of this order not later than one hour after the commencement of those proceedings.

(11) Business to which this order applies may be proceeded with at any hour, though opposed.’

(3) The following new Standing Order be made, to have effect from the date specified in paragraph (6) of this order—

‘Committee of Privileges

(1) There shall be a select committee, called the Committee of Privileges, to consider specific matters relating to privileges referred to it by the House.

(2) The committee shall consist of ten Members, of whom five shall be a quorum.

(3) Unless the House otherwise orders, each Member nominated to the committee shall continue to be a member of it for the remainder of the Parliament.

(4) The committee shall have power to appoint sub-committees consisting of no more than seven Members, of whom three shall be a quorum, and to refer to such sub-committees any of the matters referred to the committee.

(5) The committee and any sub-committee shall have power—

(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place and to report from time to time;

(b) to appoint legal advisers, and to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.

(6) The committee shall have power to order the attendance of any Member before the committee and to require that specific documents or records in the possession of a Member relating to its inquiries be laid before the committee or any sub-committee.

(7) The committee shall have power to refer to unreported evidence of the former Committees on Standards and Privileges and to any documents circulated to any such committee.

(8) The committee shall have power to refuse to allow proceedings to which the public are admitted to be broadcast.

(9) The Attorney General, the Advocate General and the Solicitor General, being Members of the House, may attend the committee, may take part in deliberations, may receive committee papers and may give such other assistance to the committee as may be appropriate, but shall not vote or make any motion or move any amendment or be counted in the quorum.’

(4) From the date specified in paragraph (6) of this order—

(a) Standing Order No. 121 (Nomination of select committees) shall be amended, in line 12, by leaving out ‘the Committee on Standards and Privileges’ and inserting ‘the Committee of Privileges, the Committee on Standards’;

(b) Standing Order No. 149 (Committee on Standards and Privileges) shall be repealed;

(c) in Standing Order No. 150 (Parliamentary Commissioner for Standards), in each place where the words ‘Committee on Standards and Privileges’ occur, there shall be substituted the words ‘Committee on Standards’.

(5) From the date specified in paragraph (6) of this order, the Order of the House of 19 July 2010 (Liaison Committee (Membership)) shall be amended by leaving out ‘Standards and Privileges’ and inserting, at the appropriate place in alphabetical order, ‘Privileges’ and ‘Standards’.

(6) The date specified for the purposes of paragraphs (1) and (3) to (5) of this order is the first sitting day of the first month after the month in which the House agrees a resolution under Standing Order (Lay members of the Committee on Standards: appointment, etc.) appointing two or three lay members of the Committee on Standards.

[Madam Deputy Speaker]

With this, we shall discuss amendments (b), (c) and (a) to motion 2, and motions 3 and 4 on pay for Chairs of Select Committees.

[Sir George Young]

On 2 December 2010, the House agreed, without Division, to a motion agreeing with the principle set out in the twelfth report of the Committee on Standards in Public Life that lay members should sit on the Select Committee on Standards and Privileges. The House invited the Select Committee on Procedure to bring forward proposals to implement that.

The Procedure Committee published its proposals in its sixth report of the current Session, which was published on 7 November last year. The Government, and I am sure the whole House, are very grateful to that Committee for its work. The motion draws extensively on the work of the Procedure Committee, and follows consultation with that Committee, the Standards and Privileges Committee and others. I am pleased to say that the Procedure Committee has written to confirm that it broadly accepts the approach that we propose to take, and the support of the Standards and Privileges Committee is apparent from the welcome decision of the right hon. Member for Rother Valley (Mr Barron) to add his name to the motion.

Before turning to the provisions of the motions, I will remind the House briefly of the background to the proposals. I need hardly remind Members that the expenses scandal rocked public faith in the House to its foundations. One part of that crisis lay in the House’s approach to disciplining Members, which, as the Committee on Standards in Public Life observed, did not command full public confidence. As Chair of the Standards and Privileges Committee at the time when the Committee on Standards in Public Life inquired into these matters, I said that the then Standards and Privileges Committee:

“would be very happy to consider having outside members sitting on the Standards and Privileges Committee…particularly to assist us in coming to judgments where people may feel at the moment we are possibly too lenient.”

The Committee on Standards in Public Life recommended in November 2009 that

“there should be at least two lay Members who have never been Parliamentarians on the Standards and Privileges Committee”,

who

“should be chosen through the official public appointments process and formally approved by the House”.

The House endorsed that recommendation after its debate on 2 December 2010. I will not attempt to summarise all that was said on that day, but the most powerful case was made by the right hon. Member for Rother Valley. He said:

“Lay members provide the public with reassurance that the Committees are not cosy gentlemen’s clubs, where deals are stitched up and scandals are hushed up. They can also bring valuable outside experience and expertise with them.”—[Official Report, 2 December 2010; Vol. 519, c. 999.]

He referred to the lay members of the Speaker’s Committee for the Independent Parliament Standards Authority. As a member of that committee, I can assure the House that the contribution of lay members is invaluable.

I have already referred to the specific recommendation of the Committee on Standards in Public Life that lay members should never have been parliamentarians. That is reflected in the motion, which also mirrors the statutory definition of lay members used for the Speaker’s Committee on IPSA.

Amendment (b), tabled by the hon. Member for Mansfield (Sir Alan Meale), runs contrary to the letter and, more importantly, the spirit of the Kelly recommendations. I invite him to consider whether it would really enhance the credibility of the House’s disciplinary procedures to appoint as a lay member a former hon. Member who left the House in 2005. I fear that that might be portrayed not as a fresh start but as a return to the bad old days, and of course public perception is part of the issue that we are seeking to address. I urge him not to move his amendment and invite the House to reject it if it comes to a vote.

Of course, there is a difference between agreement in principle that a change should take place and agreement on how it will operate in practice. A number of significant issues have been raised about lay membership of a Select Committee, and I will explain briefly how those issues have been tackled in the motions.

The first issue, identified by the Procedure Committee, was that although there had been no suggestion that lay members were appropriate for the consideration of privilege matters, there was no straightforward way to exclude them from such business within the structure of a single Committee. The solution proposed by that Committee, which the main motion today incorporates, was to create two separate Committees, one on standards and one on privileges. That is actually a reversion to the position that existed until 1995.

As the Procedure Committee recommended, provision has been made in motions 3 and 4 for the Chair of the Committee on Standards to inherit the pay now received by the Chair of the Committee on Standards and Privileges. The Government have also made it clear in their response that the Chair of the Committee on Standards, like that of the current Committee, should be drawn from the Opposition Benches. In accordance with the current arrangements, that does not need to be set out in Standing Orders.

Our intention today is not to change the composition of the Committees. The two Committees may have a common membership, and they may choose to elect the same Chair. Even if that is not the case, the Committee of Privileges is likely to meet less often and will be able to consider only matters referred to it. In those circumstances, and following the precedent of the Committee on Members’ Expenses, pay for the Chair of the Committee of Privileges is unlikely to be appropriate.

[Chris Bryant (Rhondda) (Lab)]

I wholeheartedly support what the Leader of the House is doing in separating the two Committees, which is long overdue. Will the process remain that a matter of privilege is raised through the Speaker and then in a three-minute speech, before going to the Privileges Committee? Will that Committee also be able to consider any draft legislation on privilege that the Leader of the House publishes? I believe he told me earlier this year that he would publish draft legislation before Easter.

[Sir George Young]

If the hon. Gentleman looks at the explanatory memorandum, he will see that the terms of reference of the new Committee of Privileges will be the same as those of the relevant part of the Committee on Standards and Privileges. There will be no change to the process by which a matter is referred to the Committee, or to its remit. The position will remain that it can consider only things that the House refers to it and that are within its terms of reference.

[Chris Bryant]

I am grateful. The other bit of the process that has always worked well thus far is that whenever the Committee on Standards and Privileges has produced a report, Government time has been provided to debate it. Will that be true of both Committees in future?

[Sir George Young]

Again, the hon. Gentleman anticipates something that I may say a little later, but if he looks at paragraph 176 of the Wright Committee’s report, he will see what is deemed Back-Bench business and what is deemed business that the Government should schedule. It states:

“Backbenchers should schedule backbench business. Ministers should give up their role in the scheduling of any business except that which is exclusively Ministerial business, comprising Ministerial-sponsored legislation and associated motions, substantive non-legislative motions required in support of their policies and Ministerial statements”.

It may help the hon. Gentleman if I say that the Government will ensure that there is adequate time to debate on the Floor of the House any matter referred to the House by the Committee on Standards or the Committee of Privileges. I suspect that there will be a dialogue with the Backbench Business Committee to ensure that time is available at the appropriate moment.

Amendment (c), tabled by my hon. Friend the Member for Mole Valley (Sir Paul Beresford), would set down in Standing Orders a requirement that the membership of the two new Committees should always be the same. The Procedure Committee examined the case for a requirement of identical membership in paragraph 63 of its report, and concluded that the case had not been made. I recognise that there is a case for an element of shared membership, and possibly even for identical membership, but the Government, like the Procedure Committee, do not support the notion that there should be an inflexible provision to that effect in Standing Orders. With that assurance, I hope he will not move his amendment. In splitting the Standards and Privileges Committee, the Government do not intend to revisit the decisions taken at the beginning of this Session on appropriate Committee membership.

The second issue that has been raised about lay members is their status. The Committee on Standards and Privileges has stated that

“if the proposed external members of the Standards and Privileges Committee are to carry credibility, they need to have full voting rights.”

The Procedure Committee considered the matter carefully and in great detail, and it invited the House to study with care the arguments for and against full voting rights. As the Government made clear in our response, we have carefully considered the arguments about whether lay members should have full voting rights. We have concluded that it would not be appropriate to grant such rights in the first instance, in view of the authoritative evidence given to the Procedure Committee that it would create a risk that lay members’ participation would not have the protection of parliamentary privilege.

Lay members will be able to participate fully in evidence taking and informal consideration of draft reports. In addition, there will be two specific protections for their position. The first is the requirement that any written opinion of a lay member present at the relevant meeting on a report agreed by the Committee must be published as part of its report. The second is that the Committee cannot conduct any business unless at least one lay member is present.

A decision to proceed on that basis will provide a guarantee of the effective participation of lay members in the decision-making processes of the Committee, and can be taken without prejudice to subsequent consideration of full voting rights. The Government will consider the case for legislation that would place beyond doubt the position of a Committee on Standards including lay members with full voting rights, as part of our work on preparing the forthcoming draft parliamentary privilege Bill and the accompanying Green Paper.

The third and final issue that has been raised about lay members was voiced in the debate in December 2010 and echoed in the Procedure Committee’s report. It relates to the selection of lay members and control over how they subsequently carry out their work. The motion proposes to entrust that matter to the House of Commons Commission, which would also take responsibility for a motion for dismissal in the unlikely eventuality that it should prove necessary. I believe that the Commission, chaired by the Speaker, is the best way to ensure that there is a fair and open process that leads to the House being asked to appoint only excellent candidates.

I know that some concern has been expressed about the term of office of lay members. The Procedure Committee recommended single five-year terms. However, it also acknowledged uncertainty about appointments straddling two Parliaments. The motion therefore provides for appointments for the remainder of one Parliament and reappointments for a period of up to two years in a new Parliament. Although I understand the advantages of a single term, the Government remain to be convinced that it is appropriate for lay members to be appointed for a period that, by definition, lasts longer than the appointment of hon. Members. There will be a very strong presumption indeed that lay members will be reappointed for a further term at the start of the subsequent Parliament. If they were not, the Committee on Standards would find it difficult to operate. I offer my commitment that the Government will assist in such a process.

[Mark Field (Cities of London and Westminster) (Con)]

I accept that there is a general demand for lay members, but I am sceptical as to how independent-minded they will be—I have in mind the less-than-independent IPSA as a guideline. I will not detain the Leader of the House on that.

There is a more detailed issue: cost. If lay members are involved in the Committee on Standards, especially lay members with a legal background, surely any Member of the House before it will demand expensive legal representation. Will the cost of that representation be met by the Committee, or will an individual Member be expected to meet it through his own resources?

[Sir George Young]

There are no changes to the resources available to hon. Members who appear before the Standards Committee. We are suggesting a per diem remuneration for independent members—£300, I believe, which is parallel to what independent members of SCIPSA are paid. In putting lay members on the Standards Committee, we are not making any other changes to how the Committee operates. As I said earlier in answer to the hon. Member for Rhondda (Chris Bryant), the memorandum says that all the basic rules for the two separate Committees remain unchanged apart from the addition of lay members.

[Mark Field]

There might be no desire to change the Committee’s procedure, but I suspect that there will be a different approach outside, particularly among the media. There will be much more scrutiny of a Committee that has lay members, particularly if they are high-profile legal figures. What protection will there be for MPs who find themselves subject to an investigation under the new regime, so that they have what they consider to be essential legal advice, which might come extremely expensively?

[Sir George Young]

My answer now is the same one I gave to my hon. Friend a moment ago: there is no change in the resources available to hon. Members. Currently, some decide to take legal advice and pay for it out of their own pocket; others simply represent themselves. We are not proposing changes to the way in which Members interface with the Committee, but seeking to ensure that the Committee’s decisions have greater credibility in the outside world by adding lay members to it. That is the only change that we propose to make.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Following on from the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), who said that high-powered legal figures might be appointed, I would be very concerned if judges were appointed to the panel as lay members, because that would be against the separation of powers. Will the Leader of the House give an indication as to whether judges would be appropriate?

[Sir George Young]

We are trying to get lay members. Whether a judge is a “lay member” is an interesting question. Speaking off the cuff, I do not think we propose to exclude any particular profession. Whether a high-powered judge would want to put his name forward to the House of Commons Commission for this interesting post I am not sure, but it will be a matter for the Commission to consider the candidates that come forward. Some might have a legal background. I am not quite sure that it would be appropriate to appoint a serving judge as a lay member, but somebody with a legal background might not be wholly disqualified.

May I move on to safer territory, namely amendment (a), which was tabled by the Chair of the Backbench Business Committee? The amendment would exclude business arising on a report from the Committee on Standards from the definition of Back-Bench business. It would thus prevent the Backbench Business Committee ever scheduling business arising from the work of one Select Committee and return exclusive control over that business to the Government, which is contrary to the spirit of the Wright recommendations—I read paragraph 176 a few moments ago.

The hon. Member for North East Derbyshire (Natascha Engel) envisages that the establishment of a Committee on Standards to accommodate lay members should be an occasion to reopen the settlement reached in 2010 on the scope and calculation of Back-Bench business. Although there may be a dialogue on that matter in due course, I do not think this is the right forum in which to consider it. It could certainly be considered in the review currently being conducted by the Procedure Committee. I would invite the hon. Lady not to move her amendment. If she does, I urge the House to oppose it if it is pressed to a Division.

[Natascha Engel (North East Derbyshire) (Lab)]

I put my name down to speak in the debate, but my point is such a small one that I can make it in an intervention. The issue is not whether reports from the Committee on Standards are defined as Back-Bench business, but time. Thirty-five days a Session are allocated to Back-Benchers, but that is limited, and time for debates on such reports will be scooped out of Back-Bench time in an unpredictable way. If the Leader of the House confirms that any time taken by debates on those reports is in addition to the 35 days, I will be more than happy not to move the amendment.

[Sir George Young]

The overall settlement of 35 days included an allowance for standards and privileges matters. As I have said, what the Government are left with does not include such business. The amendment is an ingenious shop-steward bid—if I may say to the hon. Lady—for extra time. If a matter comes before the House from the Standards Committee, or indeed from the Privileges Committee, there will be a debate in the House on that matter at the right time, whoever provides the allocation. That is the assurance that the House wants, and we can have a dialogue offline, as it were, on how that is accounted for in the annual tally between the Backbench Business Committee and the Government.

[Chris Bryant]

But actually, that is not quite how the process works now, is it? First, privilege issues, as opposed to standards issues, must go through the Speaker, who then forcibly makes time available, normally on the next day, and therefore always in Government time. The Leader of the House obviously thinks that he has made some improvements on Wright today, but perhaps another improvement he could make is to guarantee that time to debate privilege matters will come out of Government time.

[Sir George Young]

There is a distinction between a debate when a matter is referred to the Privileges Committee, which is normally relatively short, and a debate on a report from the Privileges Committee or the Standards Committee when they have concluded their consideration, but I accept what the hon. Gentleman says: if the Speaker decrees that a matter should be debated, it is debated. In response to the hon. Member for North East Derbyshire, I said that it is important that the House debates such reports once we have them. The business managers and the Backbench Business Committee can have a dialogue on whether the time comes out of the Committee’s quota, which, I should say in passing, we have generously exceeded in the current Session—we have gone way over 35 days to somewhere near 50 days.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

The Leader of the House will be aware that we have had only a single “defence of the realm” debate this Session. The time for that debate was eaten into because the Backbench Business Committee had to find time for a European debate ahead of it. Does he not see that there is a real danger that such important debates will be curtailed if he does not guarantee the time?

[Sir George Young]

This risks becoming a general debate on the role of the Backbench Business Committee and whether the time allocated to it is generous enough. I have sought to address the proposition put by the hon. Member for North East Derbyshire. My case is that the putting of lay members on the Standards Committee is not an opportunity to revisit the balance of time between the Government and the Backbench Business Committee. My assertion is that that is best done in the context of the review of the Committee currently being undertaken by the Procedure Committee. When we have that review, we will be in a better position to take that dialogue forward. In the meantime, I give an assurance that any report that comes from the Standards Committee will be debated promptly.

To conclude, I believe the motion provides an effective and appropriate means of giving effect to the principle agreed by the House on 2 December 2010. It represents one more step to ensure that public confidence in the conduct of hon. Members is maintained and strengthened, and I commend it to the House.

18:48

[Ms Angela Eagle (Wallasey) (Lab)]

The Opposition support the principle that lay members should sit on a newly constituted Committee on Standards. We also understand and support the pragmatic solution of splitting the current Committee in two to avoid the complications and uncertainty that could arise if non-MPs were to sit on the Privileges Committee.

When the issue was first considered at the end of last year, we did not seek to divide the House on the approach suggested. Although it is not directly analogous because all MPs are elected—and therefore ultimately accountable to their constituents—the principle of appointing lay members to a standards Committee is widely adopted in other areas of public life. For example, both the Bar Council and the General Medical Council have lay members.

On the other hand, the Press Complaints Commission also has lay members, and given the mess that it now finds itself in, perhaps we should take this opportunity to remind ourselves that lay membership of any committee is not in itself a complete answer to the challenges of upholding the standards of conduct and behaviour expected of any particular group of people, be they lawyers, doctors, MPs or—dare I say it—journalists. Undoubtedly, however, the presence of lay members should reassure the public that the Standards Committee is not some kind of cosy stitch-up but is there to deliver a rigorous and robust process that is fair to all and therefore credible. That is obviously in the public interest.

I congratulate the Procedure Committee on its work on this issue since the House’s resolution last year and on bringing this change about. I note, however, that the Government have ignored the Committee’s recommendation to give the House a further opportunity to vote on the principle of lay membership. Although the Opposition are in favour of the principle, it is noticeable that in evidence to the Procedure Committee a number of Members raised concerns about the appointment of lay members. Those Members included, from the Government Benches, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) and the hon. Member for Harwich and North Essex (Mr Jenkin).

In its report, the Procedure Committee states that

“it is right to register our concern at the level of unease felt by many Members about the House’s decision of 2 December. It may well be that, having considered the examination of the practical and privilege implications as set out in our report, the House may wish to reconsider its view of the principle of adding lay members to the Committee on Standards and Privileges.”

Will the Leader of the House explain why the Government have chosen not to tackle this unease head-on and do as the Procedure Committee suggested? Perhaps it is because of the decision to split the current Committee, but I would like to hear the Government’s explanation for their decision not to have a further vote on the principle itself.

We support the appointment of lay members to the Standards Committee. The Procedure Committee has found that the appointment of lay members is not completely without precedent—it cites a 1933 committee on the future government of India. I must say, however, that that is a rather particular example and not one likely to be replicated any time soon. It must not be assumed that simply appointing lay members to the Standards Committee will do the trick. It is clearly not a panacea.

Moreover, how lay members should take part in Committee proceedings needs to be clearly defined. This the Procedure Committee has done. It has recommended that Members of the House make up the majority of the new Standards Committee—after all, it will be a Committee of the House—and the proposals outlined in the proposed new Standing Orders, which adopt the recommendations of the Procedure Committee, suggest appointing at least two but no more than three lay members. That strikes a sensible balance.

We also agree with the proposed powers of lay members as outlined in the motion. The Standards Committee will be a Committee of the House, and the Members of Parliament who serve on it will be able to do so first and foremost because they successfully stood for election. Therefore, they are ultimately accountable to their constituents for their actions, as are all of us, and following the Fixed-term Parliaments Act 2011, they submit themselves to that judgment every five years. Lay members of the Committee will not be elected but will be appointed, and they will not have to justify their actions at the ballot box.

The Procedure Committee therefore had to consider how that difference could best be accommodated in the day-to-day workings of the Committee. It considered two options: whether members of the Committee should have full voting rights or whether they should be appointed with more limited rights. In its impressive survey of the history of Committees of the House and the operation of committees in Parliaments around the Commonwealth, the Procedure Committee came across few examples of lay members voting. In its survey of the Commonwealth, only the New South Wales Legislative Assembly had given lay members of a Committee voting rights. But that practice, confined to one Committee in New South Wales, has now ceased.

To give lay members voting rights would also raise difficult questions of privilege, as the Leader of the House pointed out. He also pointed out that the Procedure Committee outlined the issues, as set out in the evidence of the parliamentary Clerk to the Procedure Committee. For those reasons, like the Government, we support the second option, which would mean that lay members could fully participate in the Committee by questioning witnesses but could not vote.

The proposed new Standing Orders require the Committee to publish any paper from a lay member setting out that lay member’s opinion on the report. We recognise that a balance has to be struck if lay members of the Committee are not to have voting rights. Nevertheless, we recognise the concerns raised by some Members, including the hon. Member for Harwich and North Essex, about the publication of dissenting reports. I note that the right for a lay member to publish a dissenting report was described in the Government’s weekend spin on our proceedings today as a “golden share”, which is a nicer name for a veto. Perhaps the Leader of the House could let us know in more detail how he sees that power working.

Amendment (b) suggests that ex-Members should be eligible for selection as lay members after only five years out of the House. That seems like a way of ensuring that lay members are not quite lay members and runs the risk of undermining the credibility that the reforms will bring about. Amendment (c) suggests that the membership of the soon-to-be-separated Standards and Privileges Committee should be the same. That runs the risk of undermining the separation, and we believe that the membership of these important Committees could easily be different and certainly should not be made the same by changing the Standing Orders.

I do not want to spend too much time intruding on the debate between the Chair of the Backbench Business Committee and the Leader of the House, but her amendment raises an extremely important issue about the number of days allocated to her Committee. That is one of those issues that will rumble on. Suffice it to say that I have considerable sympathy with what she says.

We support the other proposals in the proposed new Standing Orders. They are a welcome advance designed to improve public confidence, but they are not a panacea. The PCC, for example, had lay members, and that did not make the body effective or ensure that the organisation retained public confidence. Public confidence in Parliament, as the Leader of the House said, was significantly damaged by the expenses scandal. The appointment of lay members will not in itself restore that confidence, but it is one of many steps taken since then to repair the damage done.

I have been a Member of the House for 20 years, and I believe that, overwhelmingly, Members are committed to public service, strive to serve their constituents and seek at all times to uphold the Nolan principles.

[Oliver Heald (North East Hertfordshire) (Con)]

The hon. Lady mentioned the Nolan principles. I am a member of that committee, in its latest guise, and I wonder whether she agrees that over the years the Committee on Standards in Public Life has done some useful work in scoping out the code of conduct and the work of the commissioner as a fully independent investigator, for example, and of course in proposing lay membership.

[Ms Angela Eagle]

I am more than happy to agree with the interjection that the hon. Gentleman made just as I was about to finish my remarks. The Nolan committee clearly has a lot to be proud of for how it has developed the code of conduct—we will have a debate on that later. It has done a great deal to codify and put in good order the standards that should be expected of every single Member of the House.

As I was just about to say, the Opposition support the proposed new Standing Orders and will not seek to divide the House.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. I inform the House that there are 18 minutes left before the debate expires. I think I saw four Members standing. I do not want to set a time limit, so I hope that each Member will make a brief contribution, enabling all four to participate.

18:58

[Sir Paul Beresford (Mole Valley) (Con)]

I shall be antipodeanly succinct; I shall be minutes.

I merely want to thank my right hon. Friend the Leader of the House. There has been discussion in the Standards and Privileges Committee, and between the Committee and him, following which some positive changes have been made. In particular, we mentioned whether the lay members may, or have to, produce a report. The reason behind my amendment (c)—this was picked up and covered by the Leader of the House—is that there is a logic and a bureaucratic advantage to having the same Members on each Committee. However, as was said by the Leader of the House—and, to my amusement, by the Opposition spokesman, the hon. Member for Wallasey (Ms Eagle)—there is also the opportunity, if required and if appropriate, for that to be altered. For that reason, I shall not press my amendment.

19:00

[Sir Alan Meale (Mansfield) (Lab)]

I commend the work of the Chair of the Standards and Privileges Committee and its members for the excellent work that they do on our behalf. We know that their work is arduous and at times difficult. Let me state at the outset that it is my intention not to challenge but to improve the proposed Standing Orders.

If accepted, my amendment (b) would in no way undermine the Committee’s excellent work. As many in the Chamber will realise, I and another Member, who sits on the Government Benches, act as co-opted representatives of the retired Members association, a body that was established to represent the interests of retired Members, of whom there are hundreds, many very elderly indeed. When these Standing Orders are approved, they will undoubtedly affect ex-Members of Parliament, or at the very least are likely to affect them. For instance, the proposed Standing Orders would quite rightly deal with the register and any reviews of it. That could be of interest to ex-Members, not least ex-Ministers, given the role they play after leaving office. The Standing Orders will also allow papers and records to be sent for that are more than likely to involve ex-Members and their time in this place.

Importantly, my amendment does not ask for someone from the ranks of ex-Members to be appointed as a lay member; indeed, I fully accept the principle of free and open competition involved in any such appointment. However, I feel strongly that ex-Members should not be excluded from the process, although I accept the need for a certain period of time to elapse. That is why I propose that any ex-Member would have had to have left Parliament a minimum of five years previously—it would probably be longer than that—before being even considered as a lay member. They could not be a Member in this place or the House of Lords, and if they became a Member at any time during their lay membership, that would mean their ceasing to be a lay member.

I was interested to hear what the Leader of House said about those who left this place in 2005. Like the hon. Member for Mole Valley (Sir Paul Beresford), I think we need to cut this debate short, but I have to say that ex-Members of Parliament, like current Members, are not pariahs. They are not the unclean or the unwashed; they are people who have given many, many years of loyal public service in this place. Most of the people who retired at the last two elections—indeed, the vast majority—were guilty of no impropriety and left with no challenge whatever to their characters. This is an important matter: these changes to standards will affect ex-Members, and it is really quite wrong to introduce Standing Orders just so that we can be clear about the public and press perception of those Standings Orders in future. Those ex-Members have the right to be represented.

I accept what the Leader of the House said about this probably not being the right time to pursue such an amendment. For that reason, I will not press my amendment to a vote. However, I say this to the Leader of the House: in future years this issue will have to be dealt with, because we cannot have a situation where hundreds of ex-Members—indeed, there might be thousands by that time—are affected by Standing Orders that they are not able to challenge or play any part in whatever.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Lorely Burt?

[Lorely Burt (Solihull) (LD)]

I just want to speak briefly to the amendment standing in my name on the revised code of conduct—

[Madam Deputy Speaker]

Order. The hon. Lady is speaking to the wrong group of amendments. I have her down to speak in the next debate; that is why I hesitated when I called her.

19:04

[Mr Kevin Barron (Rother Valley) (Lab)]

I welcome this motion standing in the name of the Leader of the House; indeed, as Chair of the Standards and Privileges Committee, I appended my name to it. As he said, the Committee has long called for lay members, and I personally have no doubt that having them will be of worth.

The House has accepted that principle. Indeed, in the debate back in December, I said that for a number of years I had been a lay member of the General Medical Council and that I felt that I had brought some experience to the table—albeit not experience of clinical decision making, but experience that doctors and others could consider in sitting in judgment on their fellow professionals and in assessing whether their decisions were the right ones.

In an ideal world, the Committee would have liked lay members to have had full voting rights and single, non-renewable terms to guard their independence, very much as the Parliamentary Commissioner for Standards has. He has five years and that is it; there is no reappointment. As a consequence, there is no way that he might be looking for any preferment for a second term, from this House or anybody within it. However, we are not in an ideal world. There are significant constitutional barriers and uncertainties about giving lay members full voting rights, and the Leader of the House has made the Government’s position on fixed terms clear. However, this motion still represents a significant step towards ensuring that the House’s disciplinary processes are fair and seen to be fair, and that we benefit from outside experience and expertise. I welcome the change to Standing Orders wholeheartedly.

As for the other matters that have been discussed—how the Committee will be split up, the timing, the membership of both Committees, and everything else—these are matters for the House. However, what we are doing is the right thing for the House to do and embodies the right principle for us to be establishing, so that people outside this place can have confidence that when we sit in judgment over our peers, people are not looking after the interests of fellow professionals—if that is indeed what we are—but passing right and proper judgment on someone who may have breached the rules.

19:07

[Natascha Engel (North East Derbyshire) (Lab)]

I rise briefly to say that I shall not press my amendment (a), simply because I do not want to detain the House further on Back-Bench business when we are discussing important matters of standards and privileges. However, I will pursue the matter through the Procedure Committee —the Chairman is in the Chamber and will have heard my intervention in this debate—as long as the Leader of the House does not think that the matter rests here, because it does not.

[Madam Deputy Speaker]

I call Lorely Burt.

[Lorely Burt]

Regarding the amendment standing in my name and that of others on the revised code of conduct—

[Madam Deputy Speaker]

Order. We are not on the code of conduct yet; we are on the motions relating to the pay for Chairs of Select Committees and amendments to Standing Orders about standards and privileges. The code of conduct is the next business, and I will definitely call the hon. Lady at the right time—unless she wants to speak in this debate.

[Lorely Burt]

indicated dissent.

19:08

[Sir George Young]

Briefly, the hon. Member for Wallasey (Ms Eagle), the shadow Leader of the House, asked why we had not put back to the House the original proposition about lay members. We dealt with that in our response to the Procedure Committee’s report. Basically, what we said was that on 2 December, the House of Commons agreed without Division to a motion that endorsed the principle that lay members should sit on the Standards and Privileges Committee. The Government do not believe it necessary for the House to be asked to restate its acceptance of a principle that it has already agreed without Division. Indeed, there has been broad acceptance of that principle in the debate this evening.

I am obviously grateful that those who have tabled amendments have said that they do not propose to press them to a Division—a tribute to the eloquence that I must have used at the beginning of this debate.

The final question that I was asked was about the so-called golden share. I am convinced that the Chair of the Standards and Privileges Committee will continue to do what has been done in the past: namely to secure unanimous reports on the matters that come before him—or, indeed, her. While I chaired the Committee, I do not think we ever had a vote. I therefore very much hope that it will not be necessary for anybody to table a minority report. However, the fact that the lay members have that option will reassure people outside that the Committee has a broader base than it has had so far, and will avoid the accusation that this is some sort of gentlemen’s club that deals leniently with its members. On that basis, I hope that we can agree the motion.

Question put and agreed to.

Pay for chairs of Select Committees

Resolved,

That—

(1) this House expresses the opinion that, from the date specified in paragraph (2) of this resolution, the Resolution of the House of 30 October 2003 (Pay for Chairmen of Select Committees (No. 2)), as amended by the Resolution of the House of 13 July 2005 (Pay for Chairmen of Select Committees (No. 2)), should be further amended in paragraph (1) by leaving out ‘Committee on Standards and Privileges’ and inserting Committee on Standards’.

(2) The date specified for the purposes of paragraph (1) is the first sitting day of the first month after the month in which the House agrees a resolution under Standing Order (Lay members of the Committee on Standards: appointment, etc.) appointing two or three lay members of the Committee on Standards.— (Sir George Young.)

PAY FOR CHAIRS OF SELECT COMMITTEES (No. 2)

Queen’s Recommendation signified.

Ordered,

That—

(1) From the date specified in paragraph (2) of this resolution, the Resolution of the House of 30 October 2003 (Pay for Chairmen of Select Committees (No. 2)), as amended by the Resolution of the House of 13 July 2005 (Pay for Chairmen of Select Committees (No. 2)), be further amended in paragraph (1) by leaving out ‘Committee on Standards and Privileges’ and inserting ‘Committee on Standards’.

(2) The date specified for the purposes of paragraph (1) is the first sitting day of the first month after the month in which the House agrees a resolution under Standing Order (Lay members of the Committee on Standards: appointment, etc.) appointing two or three lay members of the Committee on Standards.— (Sir George Young.)

Code of Conduct

Monday 12th March 2012 Commons Chamber

[Madam Deputy Speaker (Dawn Primarolo)]

We now come to the debate on the code of conduct and on all-party groups. Motion 5 relates to the report of the Committee on Standards and Privileges on the revised code of conduct, which will be debated together with motion 6, which relates to all-party groups. Mr Speaker has selected the amendment in the name of Mr Charles Walker—

[Mr Greg Knight (East Yorkshire) (Con)]

And Lorely Burt.

[Madam Deputy Speaker]

And Lorely Burt. I call Mr Kevin Barron to open the debate.

19:11

[Mr Kevin Barron (Rother Valley) (Lab)]

I beg to move motion 5.

[Madam Deputy Speaker]

With this we shall discuss the following: Amendment (a) to motion 5 and motion 6 on all-party groups.

[Mr Kevin Barron (Rother Valley) (Lab)]

Thank you, Madam Deputy Speaker. As you rightly say, there are two motions on the Order Paper in my name. The first is the more important: it invites the House to approve a revised code of conduct. The House of Commons has long had resolutions covering conduct, but the idea of a code of conduct is relatively recent. It was not until 1995 that the House endorsed the principle of such a code. Since then, the code has been revised, in 2002 and in 2005. This is only the fourth version of the code since the first version was approved in 1996.

In approving the code of conduct today, the House will be setting the framework for the rules that will, I hope, last for the remainder of this Parliament and into the next. It is important to be clear about what the code is for. It is not a rule book that sets out precise instructions about what is and is not permissible in each case. As the commissioner has set out in a memorandum attached to our report, it is a document that establishes

“broad high-level principles in relation to the main areas of a Member’s conduct”

and

“provides a high-level statement of the specific rules to which Members will be held to account”.

All those who responded to the commissioner’s consultation supported this approach. Relying on detailed rules designed to meet every eventuality creates the risk that people will be encouraged to game the system. We have only to look at the creativity of tax avoidance schemes to see that. The code has a broader function: it helps us to ensure that we behave in a way that is consistent with the seven principles of public life—the Nolan principles, which are part of the code and which underpin its provisions. Where appropriate, the code is supplemented by more detailed statements of some of the rules, such as the guide to the rules, and the rules on the use of House facilities, but Members have ultimate responsibility for ensuring that they abide by the principles of the code.

The Parliamentary Commissioner for Standards has the task of reviewing the code and making recommendations to the Committee. In 2002, the Committee on Standards in Public Life recommended that this should be done once in each Parliament. Following the expenses scandal, we judged it better to defer a review of the code in the last Parliament, in order to give Members of the new Parliament an opportunity to review it in the light of experience.

The commissioner’s memorandum to the Committee sets out all the changes to the code clearly, and explains the reasoning behind each of them. Our report focuses on all the provisions that we consider most significant. Broadly speaking, the commissioner’s proposals have the effect of making the code clearer and removing some repetitions and infelicities. The most significant proposed change is in paragraph 2 of the code. The current code

“does not seek to regulate what Members do in their purely private and personal lives”,

but it does extend to their wider public lives. Our proposal is that the code will no longer apply to Members’ wider public lives. As the commissioner points out, Members’ behaviour in their wider public life will be policed by other regulatory bodies, and there will be no need for the House to intervene.

There is an important proviso to the exclusion from the code of private and personal lives or wider public life. Those areas should be excluded unless

“such conduct significantly damages the reputation and integrity of the House of Commons as a whole or of its Members generally.”

That is not an entirely new provision. Paragraph 15 of the present code stipulates that Members should

“never undertake any action which would bring the House of Commons, or its Members generally, into disrepute.”

Personal life is currently excluded from the code, but a Member’s wider public life is not. The code will extend only to conduct which

“significantly damages the reputation and integrity of the Commons as a whole or of its Members generally”.

That is a very high hurdle indeed.

[Lorely Burt (Solihull) (LD)]

Does the right hon. Gentleman agree that the amendment, which also stands in my name would prevent the commissioner from becoming involved in issues that were entirely private, while leaving scope for the investigation of breaches in which a personal matter crossed over into a political matter?

[Mr Barron]

The hon. Lady makes an interesting point. I was about to move on to talk about the amendment, and we can look at that question in a moment.

The amendment is also in the name of the hon. Member for Broxbourne (Mr Walker), and I am sure that he will explain it later in the debate. It raises significant questions. As I understand it, the amendment would mean that matters relating to a Member’s private and personal life which damaged the reputation and integrity of the House or of Members generally would remain within the scope of the code, but that the commissioner would be precluded from investigating complaints about such matters.

That raises a number of difficult questions. How would the boundaries of private and personal lives be defined? Would a matter remain private and personal if, for example, it had led to criminal behaviour or a failure to comply with civil obligations? Does something remain purely private and personal when it has been running all over the press and the internet for six or seven days? What is an investigation? Would the commissioner be precluded from giving a Member the chance to put his or her side of the story in private, rather than before the Committee as a whole? If the commissioner were unable to investigate extreme cases involving a Member’s personal and private life, would the Committee be expected to investigate them? If so, the Member’s safeguards would be reduced, as the Committee would investigate and pronounce sentence. I would feel uncomfortable about that. We are an adjudication Committee; we do not carry out investigations. The amendment seems to suggest that we might do so, however.

I understand colleagues’ fears that complaints could flood in about private lives, and that the commissioner might have to investigate matters that were properly no one’s business but that of the Member concerned. That is not what is intended. The House should have trust in the commissioner, in the Committee and in itself. Serious cases of a fall in standards should be decided on the Floor of the House, and not by the commissioner or by the Committee.

I am confident that the commissioner will not investigate purely private matters. If some future commissioner did so, I am confident that the Committee would take a robust approach, and that any serious sanction recommended by the Committee would come to the House, which would decide whether it was merited. I ask Members to have faith that all those involved, including the House, would use common sense if these measures were ever applied. I, for one, hope that they never will be.

The new provision is intended only for extreme circumstances, described by the commissioner as those in which a Member’s conduct in certain extremely limited circumstances is so serious and so blatant that it causes significant damage to the reputation of the House. In my judgment, it would be even more damaging to the reputation of the House and to the public’s confidence in the code of conduct—which is one of its key purposes—if the House were unable to take action to express its disapproval and uphold its standards in such circumstances.

[Mr Graham Brady (Altrincham and Sale West) (Con)]

Will the right hon. Gentleman give an example of something “purely private and personal” that he believes would fall within the scope as he has just defined it?

[Mr Barron]

Yes. Let us say a Member had committed fraud, not against the public purse—

[Mr Brady]

rose—

[Mr Barron]

This is a hypothetical example, but let me carry on with it. Let us say that a Member committed fraud, not against the public purse but against a family member, and it was argued that this was a purely personal matter. Let us say that this Member was sentenced in a criminal court for six months; would that not be a matter for this House?

[Mr Brady]

I am grateful—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. After putting a question to a Member, Mr Brady should wait for the answer before intervening again; otherwise, we lose the flow.

[Mr Brady]

I am grateful to you, Madam Deputy Speaker, and to the right hon. Gentleman for giving way again. He has answered my question in one sense, in that the only example he has adduced is one that is patently not “purely private and personal”, but criminal. By definition, then, it would not fall within the scope of the amendment.

[Mr Barron]

I have to say that I am not too sure about that, as I do not know the intent behind the amendment, which does not make things as clear as the change in the code does. It could be argued on a point of law that the action taken was not a matter for Parliament because it was a personal action. It might be a criminal action—

[Mr William Cash (Stone) (Con)]

Will the right hon. Gentleman give way?

[Mr Barron]

Wait. Under the circumstances I described, when someone was sentenced to six months in jail, according to the law and according to the current rules of this House, that individual concerned—obviously, I hope this never happens—would remain a Member because we do not have the legal provisions to get rid of him at present. That is something that we need to consider.

[Mr Cash]

We are looking at paragraph 15 of the current code of conduct and paragraph 16 of the amended code of conduct. It is curious that the wording has been changed. Paragraph 15, which is where we are at the moment and seems to me to be sensible, says:

“Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public’s trust”—

that is good—

“and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally, into disrepute.”

The key is “into disrepute”, and it is well known; everyone understands it. Now, for some reason—I would be grateful if the right hon. Gentleman would be good enough to explain it—paragraph 16 says simply:

“Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally”,

but leaves out the whole question of disrepute. What is the difference and why the change?

[Mr Barron]

rose—

[Madam Deputy Speaker]

Order. First, interventions should be brief. Secondly, I can see that many Members have the code of conduct with them, so the hon. Gentleman could have simply referred to the two paragraphs and the pertinent words in them.

[Mr Barron]

I will come back to that, if I may, but I want to carry on citing what the commissioner said in the memorandum, which the Committee accepted. He continued:

“But the conduct would need to be so serious and so blatant as to make it imperative that the House be given the opportunity to consider the damage done to the reputation and integrity of the House of Commons as a whole or of its Members generally.”

The code does not seek to judge the behaviour as right or wrong—only the effect it has on the reputation and standing of the House. In my view, that is a hugely important thing to defend in our democracy, particularly after the events of the last four years.

Let me deal with other issues that we need to look at. The Government are currently consulting on proposals to allow the House to decide whether or not to permit the opening of a recall petition in cases where the House considers a Member’s conduct warrants it. Does that mean purely in respect of their public life, or does it mean in their private or personal life as well? I think that we stray into these issues with the amendment, which is why I think the House would be better to stand back from it and have a look at things in the round at a later stage. Without a provision such as the one I am proposing, the House risks being either ineffectual, because the code does not allow it to deal with behaviour that everyone agrees is reprehensible, or arbitrary because it takes action even though such behaviour is not covered by the code. That seems to be the intention. The alternative is that we end up relying on legal semantics to decide whether something is still “purely personal and private”, which is absolutely not how the code should operate.

As our report says, this is a provision for extreme circumstances. It does not invite the Committee or the House to judge a Member’s purely private and personal relationships and will not be used to do so. This is not to turn the House into a moral arbiter, but to allow it to protect the integrity of Parliament. It is a judgment on the effect of a Member’s conduct on that vital objective, not a judgment on the Member’s morals.

I cannot support the amendment, but I can suggest an alternative, more appropriate, way forward. The commissioner consults the Committee on certain matters. For example, if someone is referred to the police because the commissioner is concerned about a police investigation that might have implications for the criminal law, the commissioner comes to the Committee and provides evidence to show why the referral should take place. We are then asked either to agree it or reject it. Paragraph 104 of the guide to the rules also makes it clear that the Committee expects to be consulted before accepting an investigation of a complaint against a former Member, a complaint that goes back more than seven years, or one where a member has asked the commissioner to investigate allegations without being the subject of a specific complaint. With a self-referral, the commissioner has to come before the Committee and ask our permission for this to take place. The commissioner is currently consulting on revisions to the guide to the rules.

Let me say to the House and to those who tabled the amendment that I would be happy to ask the Committee to consider adding consideration of complaints relating to a Member’s private and personal life to the category of matters for which the commissioner should not accept investigation without first consulting the Committee.

[Oliver Heald (North East Hertfordshire) (Con)]

In response to my hon. Friend the Member for Stone (Mr Cash), I wonder whether the right hon. Gentleman would want to point out that the commissioner has tried in the new version to separate what are aspirations for us all to behave well from things that we really should not do. If my hon. Friend were to look at page 42 of the review of the code, he would see that paragraph 15 is now different because of the separation in part 2 of certain aspirational requirements of the code from those things that we really must not do, which appear in the later parts of the code. It is largely a stylistic matter. I wondered whether the right hon. Gentleman might want to make that point.

[Mr Barron]

Well, I thank the hon. Gentleman for the speech. He is a hard-working member of the Committee, as well as a member of other Committees that look into standards in public life. He is well worth listening to.

[Sir Menzies Campbell (North East Fife) (LD)]

I apologise for not being in my place for the start of the debate; I was rather taken aback by the speed of previous proceedings. Let me try to put it this way. Building on what the right hon. Gentleman said a few moments ago, would he accept that the purpose of paragraph 16A is to create a presumption against investigation of private life unless the Committee determines in its judgment that such an investigation should take place?

[Mr Barron]

Yes, I understand that point, but I fear that the intention could be misinterpreted. I fully understand the issue that the right hon. and learned Gentleman raises, and I hope that the hon. Member for Broxbourne will tell us about the amendment in more detail. If it is withdrawn, it will be perfectly possible to return to the issue when the revised guide to the rules comes before us in the not-too-distant future. That revision to the guide will be more detailed than what appears in the current three-page code of conduct, which is out for consultation. If the Committee itself has not proposed that the commission should consult before opening an inquiry into personal and private matters, the House could insert such a provision, but I feel that the provision would be more helpful in the guidance than in a code of conduct that tends to contradict elements of it.

The other important clarification is the introduction of a new paragraph 15 making it clear that Members are personally responsible for the extent to which their use of expenses and allowances accords with the rules. Clearly there is nothing new in that. The current Members’ handbook warns Members that the facilities and services of the House are provided to assist Members in their parliamentary work and should be used appropriately.

Defining parliamentary purposes is, of course, not easy. Members’ roles are various, and we are, with very rare exceptions, elected as party candidates and uphold our parties in Parliament. That is very different from using public funding for party campaigning, or to support party organisations. Having considered the definition extremely carefully, the Committee recommends that the rules make it clear that public money should not be used to

“confer undue advantage on a political organisation”.

Most of the other changes consist of clarifications and re-ordering to make the code more coherent. One change that has attracted some comment is the proposal to remove paragraph 12 of the code, which refers to the need to be open and frank with Ministers, Members and officials. We suggest that it should be included in a new paragraph 13, which would also cover the declaration and registration of interests in the House. That would make it clear that Members should

“always be open and frank in drawing attention to any relevant interest in any proceeding of the House or its House or its Committees, and in any communications with Ministers, Members, public officials or public office holders.”

That is a clarification rather than a substantive change. Its roots lie in one of the more painful cases that the Committee has had to consider: the so-called Lobbygate, in which Members were drawn into discussing jobs that they might undertake after they had left the House. One of the cases arising from that involved the failure of my good friend Mr Richard Caborn to declare an interest in a meeting with the chairman of a health authority. At the time, it was argued that the rules governing declaration did not cover such cases, as the person concerned was not a Minister or a civil servant. Our judgment was that the spirit of the rules was clear: their purpose was to ensure that Members were transparent in their dealings with people who might be in a position to influence public policy or the spending of public money. However, we believed that the rules could be better expressed, and these changes achieve that.

One of the great sadnesses involved in dealing with standards cases is that we must deal with what comes before us. The Committee cannot simply refuse to look into a matter because it was a case of entrapment or a single transgression in a distinguished career, and there are a limited number of sanctions that it can recommend to the House. It is a mark of the respect and affection in which Richard Caborn is held that extremely senior people have asked the Committee to reconsider his case. We have considered the matter carefully on more than one occasion, but ultimately we decided that we had considered the rules carefully at the time of our original finding.

It may help, however, if I discuss some of the matters that were set out clearly in the original report and debate. The commissioner and the Committee agreed that the breach of the rules was inadvertent. As I said at the time, the penalty that we proposed was

“intended to be light, because we recognised that Mr Caborn did not intend to breach the rules or to bring the House or its Members generally into disrepute.”

An inadvertent slip should not obscure Mr Caborn’s long record of distinguished public service, and I hope that it does not do so.

[Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab)]

As one of those who made representations to my right hon. Friend on behalf of my former colleague the then Member of Parliament for Sheffield, Central, I welcome the tenor and nature of his speech. Does he agree that in future, and specifically in the guidance that is to be offered, there should be absolute transparency about the operation of the Committee and about basic rules of fairness? For instance, should the guidance not make clear what is a constituency matter and what is not? Richard Caborn has rightly argued that that was a problem in the interpretation of the previous rule.

[Mr Barron]

I do not want to go into any great detail, but the changes in the code are intended to do precisely that. They are intended to clarify areas so that they are not open to interpretation—or, some would argue, misinterpretation—in years to come.

The code does not need radical revision, but it does need to evolve to meet the changing expectations and circumstances of not just the House of Commons but the public outside, and, as I have said, it needs to be as clear as possible. On behalf of the Committee, I thank the commissioner for his thorough consideration of the code and the work that he has done to produce a clearer, more coherent document, which I commend to the House. I hope that those who tabled the amendment will reconsider their position, but we will be able to revisit it. The guidance will reassure the House that no commissioner will be able to forage into areas that would be unfair on Members of Parliament, and I hope that that will be acknowledged.

I also hope that the second motion will prove entirely uncontroversial. It introduces an additional register to record the interests of those who provide secretariats for all-party groups. It will deal with an anomaly between the registration requirements for staff of all-party groups and those for Members’ staff. It will make the arrangements easier to administer, and will reduce the risk that, owing purely to inadvertence, interests will not be registered. The proposal is the result of a paper from the Registrar of Members’ Financial Interests, and the Committee is grateful to her for it. The staff of all-party groups are currently required to register only income from employment, whereas secretaries and research assistants are also required to register gifts, benefits and hospitality. The motion proposes that the registration requirements should be the same for both groups.

The motion also proposes the transferring of the requirement to register to the staff member from the Member who is the registered contact for the all-party group, who may not be closely involved in the group’s administration. That would make it easier to ensure that the registration requirements are complied with, as the relevant forms can be issued with pass applications, and it will not be necessary for an officer of the group to take such action. As Members may know, the Speakers of the two Houses have set up a bicameral working group to consider all-party groups. I am a member of it, as are others who are in the Chamber this evening. There may be more changes to come, but there is no need for us to delay this change.

I trust that the House will approve my modest proposal to streamline and tighten the registration requirements for staff of all-party groups. Indeed, I hope that it will agree to both motions. I look forward to ending any misgivings relating to one of the reports at a later stage in our proceedings.

19:37

[Mr Charles Walker (Broxbourne) (Con)]

It is a great pleasure to follow the right hon. Member for Rother Valley (Mr Barron). Let me begin by paying tribute to the work of his Committee and the Parliamentary Commissioner for Standards. A great deal of thought has gone into their review, and much of what is suggested makes perfect sense. However, my amendment seeks to address and limit the no doubt well-intentioned recommendation that will allow the commissioner to broaden his remit into investigating and adjudicating on Members’ conduct in their wider private and personal lives. I believe that that proposed intrusion into Members’ private and personal lives is a step too far, and I am worried about where it may lead the commissioner and the House if left unamended.

Justifying an extension of the commissioner’s powers, the Committee states on page 11 of its report, paragraph 2, that

“The Code does not seek to regulate the conduct of Members in their purely private and personal lives or in the wider conduct of their public lives unless such conduct significantly damages the reputation and integrity of the House of Commons as a whole or of its Members generally.”

If deconstructed, however, that statement, far from limiting the new powers of the commissioner in the area of Members’ private and personal lives, gives him almost unlimited scope to investigate any action committed in this space on the basis that it is potentially damaging to the reputation of Parliament and its Members. A less generous, but accurate, interpretation of paragraph 2, page 11, would read as follows: “The code will seek to regulate the conduct of Members of Parliament in their purely private and personal lives, if it is the view of the commissioner and the Committee that their actions could be deemed significantly to damage the reputation and integrity of the House of Commons as a whole, or of its Members generally.”

I worry about where this new activism by the commissioner might lead. Over the weekend, I racked my brain to try and imagine scenarios in Members’ private lives that would trigger the interest of the commissioner, and I could only come up with two topics: the bedroom and the bottle. In common with most people, these are the two weaknesses that seem most likely to compromise Members of Parliament in their private lives.

On page 24 of the report, the commissioner argues that his interest is warranted on the basis that

“a Member of Parliament is never off duty. Once elected, a serving Member is likely always to be seen as a Member of Parliament, with the duties and obligations that go with that position, wherever they are and whatever they are doing.”

I dispute that view. Despite living in his constituency full-time, the Member of Parliament for Broxbourne—namely, myself—is, on occasion, most certainly off duty, and be assured, Mr Deputy Speaker, if I were not off duty on occasions, I would slowly, but surely, go mad. Perhaps that point has already been reached.

[Mr Robert Syms (Poole) (Con)]

I find it refreshing that the commissioner thinks we are never off duty. I wonder whether that will be reflected in the Senior Salaries Review Body review of our salaries.

[Mr Walker]

My hon. Friend is leading me into territory into which I should not stray in this debate.

[Sir Paul Beresford (Mole Valley) (Con)]

May we think about a recent case that the Committee considered? A Member might have had a private meeting, perhaps with another family member who was a businessman, and in which there was a discussion about funding and payment. During that meeting, the Member might have utilised his position as a Member, and that might have become public knowledge, although the meeting was private. I am sympathetic to where my hon. Friend wants to go, but I am bothered that we have not looked at this issue properly and I would like him to consider putting his point but—as the Committee Chairman, the right hon. Member for Rother Valley (Mr Barron), said—then allowing us to look at it carefully later, to ensure that we do not err.

[Mr Walker]

I will take that into consideration, and I acknowledge the spirit in which the point has been made.

[Oliver Heald]

May I return to the theme I was developing earlier, in what was described as a very long intervention? I shall try to be briefer this time. The commissioner suggests that some of the new rules might be split. We used to have rule 2, stating that the rules do not

“seek to regulate what Members do in their purely private and personal lives”,

whereas rule 16 said Members must not bring the House into disrepute, which was, in a sense, a mop-up rule. Matters are set out in a more coherent way now, but there is no real change.

[Mr Walker]

I disagree with my hon. Friend about that. The commissioner is clearly trying to give himself powers to investigate Members’ private and personal lives, which is why this amendment has been tabled.

The commissioner’s interpretation of a Member’s status is at odds with that of another regulatory body, the Independent Parliamentary Standards Authority, which states in its consultations and press releases that a fundamental principle of its scheme is that MPs

“should be treated…as far as possible like other citizens.”

The various regulatory bodies that oversee and adjudicate on our activities cannot reasonably expect to have it both ways. The public now rightly demand that Members of Parliament should face the same rigours that they do in their daily lives. The flip-side of that must be that parliamentarians, “like other citizens”, also have the right to a private life and private space—and in this private space people will, on occasions, make mistakes.

It is in the nature of our job—this vocation—that if these mistakes are large enough, they will be picked up and reported by the press, with all the opprobrium, shame and upset that goes with having our private calamities played out on a national stage. I look back at the personal agonies that the former hon. Members for Croydon Central and Winchester went through in the last Parliament, and I shudder to think how much worse things would have been for them if the parliamentary commissioner, however well intentioned, had been conducting his own forensic investigation into their actions, dragging in family, friends and perhaps other aggravating parties. There would have been months and months of investigation, all in the name of protecting the notional honour of the House.

The Committee does not dismiss the possibility of such investigations. It offers a well-meaning but vague assurance on page 6 of its report that

“like the Commissioner, we do not think the Committee or the House should be drawn into judging a Member's purely private and personal relationships.”

Why is that sentence not worded more forcefully? Why does it equivocate when it could say that “the commissioner and the Committee will not allow the House to be drawn into judging a Member’s purely private and personal relationships”? Why is that assurance not given by the commissioner and the Committee? The reason, I believe, is that it cannot be given because the commissioner knows full well that, almost exclusively, personal scandals and misfortunes are where the action lies.

[Oliver Heald]

Does my hon. Friend’s amendment not create the same problem? If the matter in question were not only to relate to a Member’s conduct, but also affected their ability to be an MP—rank dishonesty falling short of crime, for example—the commissioner would be able to investigate. Does my hon. Friend’s amendment make any difference, therefore?

[Mr Walker]

In his usual helpful way, the broad-minded Leader of the House made it clear in his response to the consultation that he was not aware of any recent cases where a Member’s conduct in their purely private and personal life had been so outrageous that the House or the general public would have wanted action to be taken against the Member. Those pushing this proposal cannot come up with any sensible examples.

The Leader of the House has been in this place for almost 40 years, but while it seems he cannot think of anything worth investigating, the commissioner clearly can. That is why he is promoting this change to the current code of conduct.

[Mr Cash]

This issue boils down to how the provisions are drafted. No one has any serious doubt about the intentions and the parameters, but problems do arise. The code states that it does not

“seek to regulate what Members do in their purely”—

I emphasise that word—“private and personal lives”, or in the conduct of their wider lives. Rule 16, however, says:

“Members shall never undertake any action which would cause significant damage.”

Therefore, on the one hand we are told the code does not seek to “regulate”, yet on the other hand we are told Members shall “never” undertake certain actions. I do not think there is any real doubt about what is intended, but I am worried about the interpretation that might be drawn if this proposal is passed. That is the problem. This is more an issue of drafting than of intention.

[Mr Walker]

I thank my hon. Friend for his intervention.

I appreciate that the Committee and the commissioner are at pains to point out that it is not their intention to create a “red top” charter. I accept that that may not be their intention, but the fact remains that real reputational threat to this place is contained in this flawed proposal.

[Sir Paul Beresford]

My hon. Friend said he wanted an example. I did give him one, but he has not responded to it. It is a financial, not a lurid, example, and I would like him to consider it.

[Mr Walker]

The example given was fraud, and it was also extraordinarily tortuous.

The Leader of the House, whom I do not often pray in aid of my arguments—as he knows—has been here for 40 years and he cannot think of anything in that time that would have required this power to have been exercised. We in this place are brilliant at inventing new misdemeanours and crimes as sticks with which to beat ourselves.

[Mr Syms]

My hon. Friend talked about bed and the bottle. I have never been asked to go on a billionaire’s yacht, although it is something that one would perhaps look forward to, but some Members of this House do stay with important people when on holiday. Does he think that this proposal will give another hand to those who want MPs to have to declare where they are going on holiday?

[Mr Walker]

My hon. Friend leads me into the final part of my speech. Let us be clear that however well intentioned the power the commissioner is seeking, it will mean that Members’ private and personal lives will be in the ambit of investigation. Their actions will be scrutinised by the commissioner and a subjective view will be taken of whether or not those actions could cause significant damage to the reputation of the House. Every sexual peccadillo, domestic dispute or unguarded cross word would lead to tabloid calls for the commissioner to take action—“Something must be done”, the headlines will cry. The commissioner argues that in the event of an undefined personal scandal, the House’s status would be diminished if it

“were unable to take action to express its disapproval and uphold its standards in such circumstances.”

In a sense, that sounds like a return, after 17 years, to “back to basics”. We know what a disaster that was; we had all these moral judgments applied to the activities of Members. The one example that my hon. Friend the Member for Mole Valley (Sir Paul Beresford) did provide would be covered by criminal law in any case, so it is not relevant to this debate.

In conclusion, I am fully aware that Members of Parliament can do bad and unethical things in their capacity as Members of Parliament, which is why these standards and the code of conduct are so important. As importantly, I am also aware that people can do silly and stupid things regardless of who they are, because none of us was born an angel or a saint. So I strongly believe that the House should confine itself to worrying about the matters that directly pertain to the job of being an elected representative, and not those that relate to general human weakness or stupidity. For that reason, I urge the House, the right hon. Member for Rother Valley, for whom I have a huge amount of time, and my hon. Friends the Members for North East Hertfordshire (Oliver Heald) and for Mole Valley, of whom I am extraordinarily fond, despite our little spat this evening, to support my amendment. On this occasion, it is time that the House recognised that the Member of Parliament for Broxbourne is arguing for the virtuous and should carry the day.

19:52

[Ms Angela Eagle (Wallasey) (Lab)]

We welcome the review of the code of conduct by the Parliamentary Commissioner for Standards and the report by the Committee on Standards and Privileges commenting on the draft code and the changes that the commissioner has suggested. May I also say at the outset that Labour supports the changes that he has suggested for all-party groups?

As the Committee notes, the code was last revised in 2005 and several areas of it could be usefully clarified, so there is much that we welcome in the review. It is sensible that the code of conduct has remained one of high-level principles, rather than detailed rules. As the chairman of Standards for England noted in his consultation response, there is a danger that having a set of rules

“which is too tightly defined can lead to a complexity which makes understanding of the rules too difficult to grasp which is therefore counter-productive”.

We welcome the fact the commissioner has rejected such an overly prescriptive rules-based approach. There is much that we can welcome in the report, so rather than go into great detail about that, I wish to concentrate on areas where we have some concerns, one of which has been pointed out by the hon. Member for Broxbourne (Mr Walker).

Labour Members believe that the existing code of conduct is working well. That is not only a tribute to the work done by my right hon. Friend the Member for Rother Valley (Mr Barron) and his Committee, but it is reflected in the responses to the consultation, which did not throw up any major concerns with the status quo. Therefore, any suggestion that the code should be extended into areas not currently covered would need to be backed up by a convincing argument.

In his consultation, the Parliamentary Commissioner for Standards asked:

“Should the scope of the Code extend to some aspects of a Member’s private and personal life? If so, how should that be expressed in the Code?”

The parliamentary Labour party’s response to the consultation said no to that, as we feared that it would turn the code of conduct into a code of morals. That remains our view, and we are puzzled by the commissioner’s recommendation on this point. The proposed revision to the code states:

“the Code does not seek to regulate the conduct of Members in their purely private and personal lives”.

We agree with that approach, because the code should not seek to do that. However, the proposed new code would go on to state:

“unless such conduct significantly damages the reputation and integrity of the House of Commons as a whole or of its Members generally.”

That is the point that we have all been wrestling with in the debate.

That extension appears to suggest that we, as Members of this House, are entitled to a private life—we are all human, so we are entitled to one under article 8 and the Human Rights Act 1998—unless the commissioner rules that we are not. As the Leader of the House pointed out in his response to the consultation,

“extending the scope of the Code explicitly to cover Members’ private and personal lives could, as you note in the consultation paper, lead to their human rights being infringed.”

What threshold would result in the code coming into action? We are not told. The commissioner’s response to the consultation says that it would be “extremely limited circumstances” that are

“so serious and so blatant”.

However, he gives no further indication of what those might be. Such comments cause further confusion, rather than illuminate what the new situation might be. He gives no clues as to what he thinks those circumstances should be.

So what are these “extremely limited circumstances”? Some attempts have been made in the debate to define them, but those have been unsatisfactory. I am sure if we stood on Westminster bridge and canvassed the views of those who passed by, we would find as many views on what those circumstances should be as people we spoke to. The current commissioner may take a narrow view of what constitute his “extremely limited circumstances”, but his successor may take a more or less narrow view. This is an unsatisfactory situation. The Leader of the House noted in his response to the consultation that we should be

“wary of extending the Code to deal with a purely hypothetical eventuality.”

I agree with that.

As I said at the outset, the existing code is working well. What was needed was tweaking and clarification, not mission creep. Most of the proposed changes to the code are sensible and can easily be supported.

[Oliver Heald]

I rather agree with what my hon. Friend the Member for Stone (Mr Cash) was saying earlier. I do not think there is any intention to extend the scope of the code here. The existing code, before the amendments, did not apply to private conduct, but there was a general provision that no Member must act in a way that brought the House into disrepute. This is about clarifying what those two provisions mean in the amended code. I would have thought that that was something that should happen, even if the hon. Lady is not happy with the exact wording.

[Ms Eagle]

The hon. Gentleman makes a particular point, but I do not think that what the commissioner has suggested is clear either and that is what we are struggling with at the moment. I may be alone in this, but I did not think that we faced a problem that needed the kind of revision that has got us into the confusing situation we are now in.

Members of Parliament are rightly accountable in the courts of law and under the code, as are people in other walks of life. But unlike lawyers, general practitioners or people in any of the other professions, Members of Parliament are accountable at the ballot box for their actions and they are accountable to their political party. The electorate are entitled to make a judgment about a Member’s private life, and about how effectively they pursue their constituency duty and how they treat their constituents—that is how democracy works—but I trust the common sense of the British people to make such judgments; we should leave judgments about morals to them.

19:58

[The Leader of the House of Commons (Sir George Young)]

I welcome the chance to intervene briefly in this interesting debate, and I commend the right hon. Member for Rother Valley (Mr Barron) for his speech in moving the motion and for his work on the Committee on Standards and Privileges during his time as Chair, including his work in producing the two reports we are considering today. The House will have noted what he said in response to the amendment tabled by my hon. Friend the Member for Broxbourne (Mr Walker).

I also commend the Parliamentary Commissioner for Standards, John Lyon, for his work as commissioner. His term of office concludes at the end of this year, and it is possible that this will be the last debate on the work of his office, in general terms, during it. He has faced a work load that neither he nor anyone else could have foreseen when he was first appointed, he has discharged his responsibilities conscientiously and effectively and been a source of wisdom and good sense for the Committee on Standards and Privileges and its successive Chairs. I say that with added conviction as the Chair at the time of his appointment.

The review of the code that the commissioner has carried out reflects the experience he has gathered during his term. The overwhelming majority of the changes he has proposed represent sensible changes, improving the clarity and structure of the code without affecting its overall scope and meaning. In particular, the changes help to distinguish the aspirational parts of the code from the adjudicable part.

I want briefly to touch on four areas that have attracted particular interest, namely the application of the code to hon. Members’ private lives, the code in relation to constituency responsibilities, personal responsibility for the use of resources, and the principle of equal application to all hon. Members.

On the first matter, the commissioner, the Committee and the House have wrestled, and are wrestling, with the vexed issue of how far the code applies to hon. Members’ private lives, which is the subject of the amendment tabled by my hon. Friend the Member for Broxbourne and others. In my submission to the review, which has already been quoted, I said that the distinction between private and public lives was

“important, even if it is not always clear”.

I noted that an extension to private lives might lead to an infringement of human rights, a point also made in the submission by the chair of Standards for England.

I further pointed out that any such extension

“could also be used to justify intrusive and prurient media interest in Members’ private lives, on the basis that if the House chooses to concern itself with Members’ personal lives—however sparingly—then there should be no limits to the media doing likewise”.

[Sir Menzies Campbell]

As my right hon. Friend will know, the code must be read as a whole. Has he had time to look at paragraph 18, which provides:

“The Commissioner may investigate a specific matter relating to a Member’s adherence to the rules of conduct under the Code”

and the following sentence, which states:

“Members shall cooperate, at all stages, with any such investigation by or under the authority of the House”?

If the investigation is into private life, that necessarily means that if a Member refused to answer a question on his or her private life, he or she could be regarded as breaching that part of the code.

[Sir George Young]

My right hon. and learned Friend is right. Once an inquiry has been started by the commissioner, Members are obliged to co-operate and if they do not, they will face consequences from the Committee on Standards. That paragraph would then kick in.

The commissioner has concluded that being an hon. Member is a way of life. As he put it, an hon. Member

“is never off duty. Once elected, a serving Member is likely always to be seen as a Member of Parliament, with the duties and obligations that go with that position, wherever they are and whatever they are doing.”

I personally paused at the assertion that I am never off duty, and I think my hon. Friend the Member for Broxbourne and other colleagues might have had the same reaction. I think that there are times when I am off duty. The commissioner’s conclusion is that an hon. Member’s conduct in both their private and wider public lives is excluded from the provisions of the code

“unless such conduct significantly damages the reputation and integrity of the House of Commons as a whole or of its Members generally”.

This is a very high hurdle for investigation, and that approach was endorsed by the Committee on Standards and Privileges.

The amendment, if the subject of a complaint related only to the conduct of a Member in his or her private and personal life, would have the effect of providing that it could not be investigated. I am confident that the Members who have proposed the amendment have no wish to argue that Members should be subject to special treatment that is not available to others. The issue at stake is simply whether there would ever be circumstances in which it would be appropriate for the commissioner to undertake an investigation into a matter that did not intersect at all with an hon. Member’s conduct in his or her public capacity. That is a matter for the House and each hon. Member to consider and it is not an issue on which it is appropriate for the Government to take a collective view, although I am personally sympathetic to the case made by my hon. Friend the Member for Broxbourne.

The House will also want to reflect on the offer made by the Chair of the Standards and Privileges Committee to take the House’s concern and address it in the revised guide, which, as I understand it, would leave the code unamended and insert an additional step in the process, in that the Committee would have to agree to the commissioner conducting an inquiry in this particular domain. I am sure that the House will welcome those offers and will want to reflect on them.

Another potential matter of contention is the application of the code to constituency matters. In his memorandum, the commissioner makes it clear that the way an hon. Member handles constituency business should not be adjudicable by the commissioner, and I agree. He suggests that the House would only wish to consider an instance that was

“so serious and blatant as to cause significant damage to the reputation of the House”.

I agree that it is very hard indeed to envisage these criteria being met.

On the third issue, in my submission to the review I supported proposals for redrafting the code in line with recommendations by the Committee on Standards in Public Life

“so that the House has a clear basis to take action against any Member who has abused the IPSA scheme”.

The commissioner proposed to do that by means of a provision that stated that the use of public resources may not confer a political benefit. The Committee on Standards and Privileges has suggested a change, arising from its observation that it is unrealistic to expect that parliamentary activities legitimately funded from the political purse might never confer an indirect political benefit. The new code rightly makes it clear that Members should be clear that the use of public resources must always be in support of their parliamentary duties and should not confer any undue personal or financial benefit on themselves or anyone else or confer undue advantage on a political organisation. I agree that that formulation is in line with the original proposals of the Committee on Standards in Public Life, which used the phrase “undue advantage”.

Finally, the commissioner considered and rejected a number of proposals that would involve separate rules for hon. Members who were former Ministers or who were Opposition Front Benchers. He did so on the basis of the principle that

“the Code should apply equally to all Members”.

That is a principle that I wholeheartedly support.

The second motion, as the right hon. Member for Rother Valley said, is more straightforward. It seeks the approval of the twenty-first report from the Committee on Standards and Privileges, which recommends extending the scope of registration to individual staff of all-party groups who hold passes and to transfer the onus of registration from the registered contact of the group to the staff member him or herself. As my hon. Friend the Deputy Leader of the House stated in the debate on all-party groups on 7 February last year, all-party groups can play a valuable role provided they are transparent. That measure seems sensible and does not represent an abdication of responsibility by hon. Members who are officers of all-party groups. Instead, it reflects the proper situation whereby individuals who have the benefits of being a pass holder in this place should personally accept the responsibilities that flow from that.

I look forward to the rest of the debate and to the House coming to a decision on these vexed matters.

[Mr Deputy Speaker (Mr Nigel Evans)]

Mr Walker, do you intend to press your amendment to a Division?

[Mr Charles Walker]

I would be delighted if the Government would accept it, if they could, but otherwise I would like to press it to a Division.

20:08

[Mr Barron]

With the leave of the House, Mr Deputy Speaker, before the amendment is pressed, I ask Members to remember my offer to look at the code of conduct and ensure that any commissioner—this current one or any in the future—would have to come to the House before considering any of the issues referred to in the amendment.

The current code states in paragraph 15:

“Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public’s trust and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally, into disrepute.”

There is no mention in that paragraph of personal and private lives, or, indeed, of public lives, although they are mentioned in other parts of the code. The provision has never been enacted in such a way and I fear that if the House goes down the route of accepting that people’s personal and private lives are not covered by the code of conduct, that will be a step back. It seems to me that the House would be better advised to consider the genuine proposals that anybody wanting to look into someone’s private and personal life would have to come to the Committee to do so. This House should have confidence in its Members who sit on Committees and in the fact that we have an independent commissioner whom we appoint, whose terms and conditions we set and who is independent of us. It should have confidence in a Select Committee on Standards and Privileges that operates in a non-party political way that was unanimous in saying we should accept the paper before us. We certainly are not unanimous in accepting the amendment. The House should have confidence in itself that if the commissioner or the Committee ever did something wholly wrong, the House could reject that.

Let me finish by saying to hon. Members, including my hon. Friend the Member for Wallasey (Ms Eagle) on the Front Bench, who mentioned morals, that this is not about morals. I can tell the House, as the Chairman of the Committee, that if the commissioner came to me with a report about morals I would go around the Committee first before I would discuss the memorandum before us. It is not something we should do or that would be acceptable to Parliament or the general public. However, there are circumstances and occasions on which Members have gone overboard but have not been covered by the code. I genuinely think it would be wrong for us to agree to the amendment today. We can look at the guidance and these issues more widely if need be, but what is proposed would be a backward step. If the amendment is accepted the code will be weaker than the code I have in my hand. I genuinely think we should not do that.

[Mr Deputy Speaker (Mr Nigel Evans)]

Mr Walker, do you intend to press this to a vote?

[Mr Charles Walker]

I do: one’s personal and private life is one’s personal and private life.

Amendment made: (a), at end, add

‘, subject to the following amendment: After paragraph 16 of the Code, there shall be inserted the following new paragraph:

“16A. The Commissioner may not investigate a specific matter under paragraph 16 which relates only to the conduct of a Member in their private and personal lives.”.’.—(Mr Charles Walker.)

Main Question, as amended, put and agreed to.

Resolved,

That this House takes note of the Nineteenth Report of the Committee on Standards and Privileges (HC 1579), and approves the revised Code of Conduct set out in the Annex to the Report, subject to the following amendment:

After paragraph 16 of the Code, there shall be inserted the following new paragraph:

“16A. The Commissioner may not investigate a specific matter under paragraph 16 which relates only to the conduct of a Member in their private and personal lives.”.’.

All-Party Groups

Resolved,

That

(1) this House agrees with the recommendations in the Twenty-first Report of the Committee on Standards and Privileges, on Registration of Staff All-Party Groups (HC 1689); and

(2) accordingly the Resolution of the House of 17 December 1985, as amended on 10 March 1989, 29 July 1998 and 7 February 2011, relating to the registration of interests be further amended by:

(a) leaving out paragraph 3 (f); and

(b) inserting a new paragraph 4:

“Holders of permanent passes as staff of All-Party Groups be required to register:

i. any paid employment for which they receive more than 0.5 per cent. of the parliamentary salary; and

ii. any gift, benefit or hospitality they receive, if the gift, benefit or hospitality in any way relates to or arises from their work in Parliament and its value is over 0.5 per cent. of the parliamentary salary in the course of a calendar year.”.—(Mr Barron.)

Localism Act 2011

Monday 12th March 2012 Commons Chamber

20:12

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

I beg to move,

That—

(1) The following new Standing Order be made—

‘Localism Act 2011, etc.: scrutiny of certain orders and draft orders

(1) The Regulatory Reform Committee shall examine and report on—

(i) every draft order laid before the House under or by virtue of section 7 of the Localism Act 2011 or section 5E of the Fire and Rescue Services Act 2004;

(ii) every draft order laid before the House under section 19 of the Localism Act 2011.

(2) In the case of every draft order referred to in paragraph (1)(i) the committee shall consider the Minister’s recommendation under section 15(1) of the Legislative and Regulatory Reform Act 2006 (‘the 2006 Act’) as to the procedure which should apply to it and shall report to the House any recommendation under that Act that a different procedure should apply.

(3) In its consideration of a draft order referred to in paragraph (1)(i) the committee shall include, in addition to such other matters as it deems appropriate, whether provision in the draft order—

(a) appears to make an inappropriate use of delegated legislation;

(b) has an effect which is proportionate to the policy objective intended to be secured;

(c) strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d) does not remove any necessary protection;

(e) does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise;

(f) is not of constitutional significance;

(g) has been the subject of, and takes appropriate account of, adequate consultation;

(h) gives rise to an issue under such criteria for consideration of statutory instruments laid down in paragraph (1) of Standing Order No. 151 (Statutory Instruments (Joint Committee)) as are relevant.

(4) In its consideration of a draft order referred to in paragraph (1)(ii) the committee shall include, in addition to such other matters as it deems appropriate, whether provision in the draft order—

(a) appears to make an inappropriate use of delegated legislation;

(b) gives rise to an issue under such criteria for consideration of statutory instruments laid down in paragraph (1) of Standing Order No. 151 (Statutory Instruments (Joint Committee)) as are relevant.

(5) In relation to every draft order laid under section 7(2) of the Localism Act 2011 or section 5E(2) of the Fire and Rescue Services Act 2004 subject to the negative or affirmative procedure under section 16 or 17 of the 2006 Act, the committee shall report its recommendation whether the draft order should be made (in the case of the negative procedure) or approved (in the case of the affirmative procedure), indicating in the case of the latter whether the recommendation was agreed without a division. (6) In relation to every draft order laid under section 7(2) of the Localism Act 2011 or section 5E(2) of the Fire and Rescue Services Act 2004 subject to the super-affirmative procedure under section 18 of the 2006 Act, the committee shall report its recommendation as to whether—

(a) the draft order should be proceeded with unamended under section 18(3) of the 2006 Act; or

(b) a revised draft order should be laid under section 18(7) of the 2006 Act; or

(c) no statement under section 18(3) of the 2006 Act or revised draft order under section 18(7) of the 2006 Act should be laid.

(7) In relation to every draft order or revised draft order referred to in paragraph (1)(i) of this order that is subject to the super-affirmative procedure and is being proceeded with under section 18(3) or 18(7) of the 2006 Act, the committee shall report its recommendation whether the draft order or revised draft order should be approved, indicating in the case of draft orders which it recommends should be approved whether its recommendation was agreed without a division; and in respect of such draft orders or revised draft orders the committee shall consider in each case all such matters set out in paragraph (3) of this order as are relevant and the extent to which the Minister concerned has had regard to any resolution or report of the committee or to any other representations made during the period for parliamentary consideration.

(8) It shall be an instruction to the committee considering draft orders referred to in paragraph (1)(i) of this order and being proceeded with under section 18(3) or 18(7) of the 2006 Act that it report not more than fifteen sitting days (in the case of an order under section 18(3) of the 2006 Act) or twenty-five sitting days (in the case of an order under section 18(7) of the 2006 Act) after the relevant statement is laid.

(9) In relation to every draft order or revised draft order referred to in paragraph 1(i) of this order, the committee shall report any recommendation under section 16(4) of the 2006 Act that the draft order be not made, or under section 17(3), 18(5) or 18(9) of the 2006 Act that no further proceedings be taken in relation to the draft order.

(10) In relation to every draft order laid under section 19 of the Localism Act 2011, the committee shall report its recommendation as to whether—

(a) the draft order should be proceeded with unamended under section 19(3) of that Act; or

(b) a revised draft order should be laid under section 19(7) of that Act; or

(c) no statement under section 19(3) of that Act or revised draft order under section 19(7) of that Act should be laid.

(11) In relation to every draft order or revised draft order being proceeded with under section 19(3) or 19(7) of the Localism Act 2011, the committee shall report its recommendation whether the draft order or revised draft order should be approved, indicating in the case of draft orders which it recommends should be approved whether its recommendation was agreed without a division; and in respect of such draft orders or revised draft orders the committee shall consider in each case all such matters set out in paragraph (4) of this order as are relevant and the extent to which the Minister concerned has had regard to any resolution or report of the committee or to any other representations made during the period for parliamentary consideration.

(12) It shall be an instruction to the committee considering draft orders being proceeded with under section 19(3) or 19(7) of the Localism Act 2011 that it report not more than fifteen sitting days (in the case of an order under section 19(3) of that Act) or twenty-five sitting days (in the case of an order under section 19(7) of that Act) after the relevant statement is laid.

(13) In relation to every draft order or revised draft order referred to in paragraph 1(ii) of this order, the committee shall report any recommendation under section 19(5) or 19(9) of the Localism Act 2011 that no further proceedings be taken in relation to the draft order.’.

(2) Standing Order No. 141 (Regulatory Reform Committee) be amended as follows—

(a) in line 5, at end, insert ‘, other than one laid under section 18 of the Act as applied by section 7 of the Localism Act 2011 or by section 5E of the Fire and Rescue Services Act 2004’;

(b) line 12, at end, insert ‘; and to carry out its functions under Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders)’;

(c) in line 78, at end, insert ‘referred to in paragraph (1)(i) of this order that is’;

(d) in line 79, after ‘procedure’, insert ‘and is’;

(e) in line 92, after ‘orders’, insert ‘referred to in paragraph (1)(i) of this order and’;

(f) in line 97, after second ‘order’ insert ‘referred to in paragraph (1)(i) of this order’;

(g) in line 134, at end, insert ‘or within paragraph (1) of Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders)’; and

(h) in line 148, at end, add ‘or under section 19 of the Localism Act 2011’.

(3) Standing Order No. 18 be amended as follows—

(a) leave out from ‘under’ in line 2 to ‘should’ in line 6 and insert ‘paragraph

(4) of Standing Order No. 141 (Regulatory Reform Committee) or paragraph (5) of Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders) that a draft order subject to the affirmative procedure should be approved, or has recommended under paragraph (6) of Standing Order No. 141 or paragraph (7) of Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders) that a draft order’;

(b) leave out from ‘under’ in line 14 to ‘be’ in line 16 and insert ‘paragraph

(4) of Standing Order No. 141 or paragraph (5) of Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders) that a draft order subject to the affirmative procedure be not approved, or has recommended under paragraph (6) of Standing Order No. 141 or paragraph (7) of Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders) that a draft order’;

(c) in line 25, after ‘141’, insert ‘or paragraph (5) of Standing Order (Localism Act 2011, etc.: scrutiny of certain orders and draft orders)’;

(d) in line 28, leave out ‘Act’, and insert ‘Legislative and Regulatory Reform Act 2006’; and

(e) in the title, at end, insert ‘etc.’.

(4) Standing Order No. 151 (Statutory Instruments (Joint Committee)) be amended, in line 21, after ‘2006’, by inserting the words ‘any draft order laid before the House under or by virtue of section 7 or 19 of the Localism Act 2011 or section 5E of the Fire and Rescue Services Act 2004’.

The motion may be rather long and complex—at one point in its gestation it was even longer and more complex—but it should not be controversial. Essentially, it provides for certain draft orders which are akin to draft orders under part 1 of the Legislative and Regulatory Reform Act 2006 to be subject to Commons scrutiny in the same way as the draft orders under the 2006 Act. This will involve detailed consideration by the Regulatory Reform Committee followed by proceedings on the Floor of the House, with the nature of those proceedings reflecting the views of the Committee. The proposals follow consultation with the Liaison Committee, the Procedure Committee and the official Opposition. No objections have been voiced to the proposed method of proceeding. I have also spoken to the Chair of the Regulatory Reform Committee, the hon. Member for Poole (Mr Syms), who has confirmed that he is content with the proposed approach.

[Mr Robert Syms (Poole) (Con)]

What we now have is rather longer and more comprehensive but I think it does the job and I thank the hon. Gentleman for what he has done.

[Mr Heath]

I am most grateful for that endorsement.

I shall confine my remarks to two matters—the drafting of the Standing Orders and an account of how the procedures will work. As I have already admitted, the proposals before us are complex, but the complexity flows from the complexity of the current provisions in Standing Order No. 141. An earlier version of the motion on which I consulted was even more complex and I was asked to describe this version of the motion as the “simplified” one. Although I am confident that this motion will work, and its provisions are explained in further detail in an explanatory memorandum, I am not convinced that it is as simple as the House would wish. The Procedure Committee has indicated a willingness to consider the overall approach enshrined in Standing Order No. 141 and in the new Standing Order, and I know the Regulatory Reform Committee will also have an interest in the matter. If those Committees were to propose a simpler approach that delivered the same outcome, I believe it would be welcomed by the House.

The nature of the order-making powers covered by the motion is described in the explanatory memorandum, so I shall not describe them now. Because the powers are broad and can involve change to primary legislation, the Localism Act 2011 provides for enhanced scrutiny arrangements, including a so-called super-affirmative procedure, by direct application of or by analogy with the scrutiny arrangements under the Legislative and Regulatory Reform Act 2006. Commons Standing Orders currently assign the additional scrutiny powers under the 2006 Act to the Regulatory Reform Committee and we propose that the Committee should have the same role in respect of the new orders.

The Committee’s powers are extensive. It considers the merits of each order and the appropriateness of the proposed method of proceeding. It can conclude that a particular measure should not be proceeded with or should be subject to different proceedings. Its conclusions help to determine the procedures that are then followed on the Floor of the House. The motion enables the House to consider the new orders in the same way as orders under the 2006 Act. The proposals are complex and we have an open mind on their being simplified in due course. For the immediate future, to enable proper scrutiny to take place, I commend the motion to the House.

20:15

[Angela Smith (Penistone and Stocksbridge) (Lab)]

The motion establishes the arrangements necessary for enacting the necessary scrutiny by this House of certain orders and draft orders. It is my understanding that the Liaison Committee attempted to find a simpler method for such scrutiny but could not arrive at a satisfactory way forward. It is therefore necessary to adopt the procedure used by the Regulatory Reform Committee for the scrutiny of these orders. The procedure is complicated, as Members will realise, but Members also recognise that effective scrutiny is important. On that note, will the Deputy Leader of the House confirm that the Government will be willing to review the arrangements if weaknesses in these arrangements become apparent?

We do not object to the adoption of Regulatory Reform Committee arrangements for the scrutiny of orders and draft orders arising from the provisions of the Localism Act 2011. That is not to say that we have changed our view of the Localism Act. We voted against it on Third Reading and think it wrong that the Secretary of State should have gathered so many extra powers to himself via its provisions—142 in fact. However, the Act is now passed into law and, on the scrutiny of some of the actions arising from its provisions, we have no objection to the adoption of arrangements that mirror exactly the procedures followed by the Regulatory Reform Committee.

20:17

[Mr Heath]

With the leave of the House, I will say a few more words. I am most grateful to the hon. Member for Penistone and Stocksbridge (Angela Smith) for her comments. I assure her that if a new and better procedure is developed we will of course put it before the House. Alternatively, if there are major difficulties with what we propose, we will wish to look at it again. In the meantime, I hope that the House will agree to the motion.

Question put and agreed to.

Traveller Sites (Dorset)

Monday 12th March 2012 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Mr Vara.)

20:18

[Mr Robert Syms (Poole) (Con)]

I am pleased that the House has disposed of its business rapidly so that we can have a proper debate on Travellers in Poole, Bournemouth and Dorset. In a minute, one or two of my colleagues might run into the Chamber having been caught by the collapse of business.

Before I start, let me say that I have just emerged from hospital, having had appendicitis, and I would like to thank Oliver Allenby-Smith, his team and all the nurses on ward B4 of Poole hospital, who have been nursing me for five days. I am now on the mend and able to represent here my constituents in Dorset.

We all recognise the importance of making provision for Travellers. My experience throughout my political career is that if we make proper provision we have the legal powers to move people on from inappropriate places. It was a retrograde step when the John Major Government decided to move away from paying for pitches, because that diminished the infrastructure for many of the Traveller sites and has caused us problems ever since.

The difficulty in Dorset is that in 1996 Bournemouth and Poole both realised their aspirations of becoming unitary authorities again, and therefore strategic authorities. However, consideration was not given to the boundaries of either authority, so both remained fairly tightly drawn. From central Poole or central Bournemouth one can get to rural Dorset in about 10 or 15 minutes, so there is logic in having a policy for Travellers that encompasses not only Dorset county council, but the two other strategic authorities, Poole and Bournemouth.

Under the Housing Act 2004 Poole undertook a review of the housing need of Travellers. It carried out a consultation on the number of sites and came up with 20. It reduced that to three sites within its boundaries. One of the joys of having a local authority with no overall control is that the committee then decided to consult on all 20 sites. So I have many concerned and worried constituents who think they may well have a Traveller site in their own back yard.

I would like more co-ordination and co-operation among the three authorities. They all want to work together, but there are certain things that are causing a problem. One of the issues relates to policing, which does not impact directly on the Department for Communities and Local Government. The issue of joint transit provision is not one that strategic authorities are able to consider, because the Criminal Justice Act 2004 does not give the police powers to move Travellers across strategic authority boundaries. In Dorset, joint provision between lower-tier authorities is possible because under Dorset county council the higher tier is the strategic authority. Poole and Bournemouth do not have this opportunity because they themselves are both strategic authorities. Those authorities therefore have to provide facilities within area. That is not necessarily an easy fix. It seems bizarre that Dorset has one police force, the Dorset constabulary, yet under the law as it relates to policing, the force cannot move Travellers across Poole, Bournemouth or Dorset because they happen to be unitary authorities. That needs to be dealt with.

I would like a Minister to set out when we are likely to get the Travellers review. It would be helpful to see what obligations the local authority has. Does the Localism Act 2011, which introduced the duty of co-operation in plan-making, set out whether that will override other duties? What we need is co-operation among the three authorities. It is logical and it follows from our history and our geography that they should work together. Both Bournemouth and Poole are happy to make their contribution in financial terms, but the very tight geographical boundaries that both have make it extremely difficult to identify sites which do not have another purpose. In my constituency in Poole, for example, the only green area we have is Parkstone golf club. To the west is water, and to the north is an area of outstanding natural beauty and green belt, so identifying an efficient site within Poole will be extremely difficult.

Then there are the issues of permanent sites and transit sites. It is important that there should be transit sites. The advantage of Poole is that the transit site could easily be only a few miles up the road in rural Dorset, yet at present we seem to be precluded from taking action. I should like more information on what is envisaged. Earlier this year the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) replied to a written question on Travellers from my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke). My right hon. Friend said that he understood that there was widespread concern about rules and guidance on Travellers sites. He stated that the Department for Communities and Local Government had published the new draft planning policy for Travellers sites for consultation in April 2011, but I still do not think we have clarity.

On a number of occasions I, my hon. Friend the Member for Mid Dorset and North Poole and my hon. Friends the Members for Bournemouth West (Conor Burns) and for Bournemouth East (Mr Ellwood) have tried to pin the Government down to give us more specifics, but the Government have not been able to do so. The situation is difficult. Logic demands a collaborative approach among Dorset, Poole and Bournemouth in discharging our duties towards Travellers. We have not been able to do so because of slight legal impediments, the police impediment that I set out, and the lack of clarity.

I hope that the Minister will be able to set out clearly the requirements under the Localism Act 2011. I had great hopes of the Act. This is the great new dawn for local government. The Act specifically introduces a duty to co-operate in plan-making, although there are no definitions of what the duty consists of. The authorities are meant to come together to agree a plan strategically. This is, in effect, what is happening between the three strategic authorities, Bournemouth, Dorset and Poole, with the joint Gypsy and Traveller work. However, that does not mean that we can offload our responsibility to provide appropriate sites, and we would not wish to do so.

We are in a state of flux. The borough council wants to do the right thing, but because there is no overall control, it has consulted on too many sites and there are many worried people. Our geography and our history mean that identifying appropriate sites is very difficult. As I stated, we went from 20 sites down to three and consulted on the three. One of the three sites under serious consideration, which was in the Branksome triangle, in the constituency of my hon. Friend the Member for Bournemouth West, is already being used for car parking for Liverpool Victoria and is therefore in employment use. It is very difficult for us to identify a site that could be used as a permanent or a transit site without losing employment land. We want to do the right thing, but that is extremely difficult because of our history and our geography. That is why I hope for some answers from the Minister.

[Conor Burns (Bournemouth West) (Con)]

I congratulate my hon. Friend on securing the Adjournment debate. Does he agree that one of the major issues that we face is uncertainty, which is upsetting and unsettling many members of the local communities that we both serve across the Bournemouth and Poole conurbation?

[Mr Syms]

I agree. That is an important point. As a local politician, I am trying to get some certainty, as I am sure is my hon. Friend, so that there is a much clearer sense of direction. Therefore, we need a few more answers from Ministers. If we do not get them tonight, clearly we might need to have further meetings with the Minister concerned. The uncertainty means that people are becoming much more worried than they need to be, not least because Poole is consulting on rather too many sites, some of which are not appropriate, and worrying a lot of people. My postbag is filling up with letters from people who have genuine concerns, as I am sure is my hon. Friend’s. Poole wants to do the right thing.

[Conor Burns]

One thing that is causing considerable anxiety locally is the fact that our councils are being forced to do the consultation that they are now undertaking. My understanding is that the consultation is part-funded by the Department for Communities and Local Government and that it is a central Government requirement on local government. The point my hon. Friend made a moment ago about definition and clarity around the Localism Act 2011 is extremely important in relation to the Minister's response.

[Mr Syms]

My hon. Friend makes a good point. I think that the 2011 Act is a landmark piece of legislation, and we have high hopes that it will transform local government. He is right that we need a little more clarity on whether it will offset some of the other requirements that the Government have put on Poole. We want to do the right thing and provide sufficient sites. We want to provide what we have a duty to provide and to pay for it, but the difficulty is that he and I have extremely compact constituencies. It is difficult to find appropriate sites in our constituencies, yet there might be appropriate sites five or 10 minutes away from the conurbation. However, because we have unitary and strategic authorities it is very difficult to do that and leave Dorset constabulary in a situation where it can move Travellers on if it has to.

I know that Bournemouth has problems with Travellers on occasion and a number of temporary sites to deal with them at certain times of the year. Later in the debate I would be interested to hear my hon. Friend the Member for Bournemouth West set out his constituents’ concerns on what is a difficult and worrying subject, but one on which we as politicians need to get more clarity. Essentially, we want three authorities to work together on this, which is the whole thrust of the 2011 Act and which they want to do. We want to combine financially and make provision for Travellers in the appropriate way; the most appropriate way might be for the three authorities to make that provision on a collective basis. That might mean not necessarily having the sufficient number of sites within the boundaries of Bournemouth or Poole.

We need more clarity, and I hope that we will get it from the Minister. I know that my hon. Friend the Member for Bournemouth West has similar views and concerns to mine and I would be interested to hear them, so that the Minister may reply with conviction and give us more reassurance on this very difficult policy issue that our local councillors have to comply with. That is really all I have to say. I am pleased to see the Under-Secretary of State for Communities and Local Government, the hon. Member for Hazel Grove (Andrew Stunell) in his place and am sure that he will respond brilliantly to the debate. If we do not get the answer we demand tonight, my hon. Friend the Member for Bournemouth West and I will look forward to further meetings with Ministers so that we can meet our objectives of providing for Travellers, safeguarding our constituents and getting efficient and effective local government.

20:32

[Conor Burns (Bournemouth West) (Con)]

I begin by again congratulating my hon. Friend the Member for Poole (Mr Syms) on securing this debate and apologise for arriving a moment late. This afternoon I travelled up from the constituency of Bournemouth West, which I have the honour of representing, after attending the opening of a visitor facility in a café at the Cherry Tree nursery by Her Royal Highness the Princess Royal. That is relevant to the debate only because the nursery is surrounded by a large amount of greenfield land that has previously been occupied by illegal Gypsy and Traveller encampments, causing enormous distress to the people who work there—some wonderful young and old people who suffer from severe learning difficulties. The presence of those communities, often unannounced, has been a great source of concern to those people.

My hon. Friend is putting on the Minister responsible, who is yet to arrive, an extraordinary expectation in hoping that he will respond in detail to all the points that we are making, but I am sure that his colleague, the Under-Secretary of State for Communities and Local Government, the hon. Member for Hazel Grove (Andrew Stunell), who will reply to the debate, is taking all these points on board. My hon. Friend the Member for Poole went to the heart of the problem we face, which is that the previous Government’s policy remains in place. Before Christmas I spoke with the head of Gypsy and Traveller policy at the Department for Communities and Local Government, a lady called Nicola Higgins, who confirmed that the previous Government’s policy is still in place.

In the run-up to the most recent general election, we raised our local electorates’ hopes and expectations that the matter would be a priority of the Government who are now in office. Ministers still make the point that the Localism Act 2011 will give our local authorities the powers that they need to get together in groups and remove from them the requirement that each must have their own, separate, single-authority provision. My hon. Friend who secured this debate and I want the Government to complete that unfinished business and to move with some speed to reassuring our local communities.

My hon. Friend the Member for Bournemouth East (Mr Ellwood) told the Bournemouth Daily Echo that he had been assured—according to my hon. Friend, by the Under-Secretary of State for Communities and Local Government, our hon. Friend the Member for Bromley and Chislehurst (Robert Neill)—that

“once the Localism Bill becomes law, councils will have an opportunity to re-submit their local plans without the obligation to automatically identify gypsy traveller locations.”

In a letter to me, however, the Under-Secretary indicated that

“every local housing authority is required under section 8 of the Housing Act 1985 to carry out an assessment of the accommodation needs of travellers.”

The ongoing consultation throughout Dorset is being funded in part by money from the Department, so there is an urgent need for the Government to clarify when the powers that we promised local authorities will become available to them.

My hon. Friend the Member for Poole mentioned that there are a couple of proposed sites.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

The hon. Members for Bournemouth West (Conor Burns) and for Poole (Mr Syms) are making compelling and straightforward arguments, and it is good to see so many Members on the Treasury Bench to hear them, but does the hon. Member for Bournemouth West think that the problem is a lack of transparency or a lack of urgency from the Department?

[Conor Burns]

I am delighted to see the hon. Gentleman back in his place after his no doubt successful visit to the Falkland Islands—and this on Commonwealth day. As he knows, sometimes Governments of all persuasions need a little push, and it is our constituents who are giving us a push as those sites go out to consultation.

The current consultation, which is being carried out by Baker Associates throughout Dorset and funded to the tune of some £300,000 by the Department, is profoundly unsettling the communities that my hon. Friend the Member for Poole and I serve. One proposed site out to consultation at the moment is Lansdowne, right at the heart of Bournemouth, known locally as the gateway to Bournemouth and visible from the Wessex way.

[Mr Syms]

As I said in my contribution, the real problem is that Bournemouth and Poole local authorities became unitary without the boundaries being looked at. Both areas are very compact, and finding suitable sites is difficult unless we do so on a Dorset-wide basis.

[Conor Burns]

My hon. Friend makes a valid and compelling point which I wholly agree with and endorse.

My final point is that those communities, which include some elderly, vulnerable and frail people, are worried that our councils have gone out to consultation on specific sites. There is an excellent campaign being run on the Lansdowne site by a lady called Alex De Freitas, who has mobilised local traders and residents to put across their concerns.

We really want to hear tonight a compelling answer of some urgency from the Minister as to when our local authorities will be able to move away from that consultation and take up the very sensible powers with which they were presented in both governing parties’ pre-election offerings to the British people: the opportunity to come together and to make provision across multiple-authority areas, thereby giving the police the powers to move on the illegal encampments that do so much damage to the communities that my hon. Friend and I serve.

I, like my constituents, look forward with eager anticipation to the words of reassurance that will doubtless now flow from the Minister at the Dispatch Box.

20:39

[The Parliamentary Under-Secretary of State for Communities and Local Government (Andrew Stunell)]

First, let me say what an unexpected pleasure it is to have the opportunity to address the House on a matter that is of genuine significance and importance to my hon. Friends the Members for Poole (Mr Syms) and for Bournemouth West (Conor Burns), who spoke with eloquence about the situation that they face in Dorset and in their unitary authorities of Poole and Bournemouth. I congratulate the hon. Member for Poole on having secured the debate. I am delighted to respond to at least some of the points that he raised, although he will understand that I may not be able to respond to them all, including those that refer to specific sites and specific planning applications and situations, because ultimately they might finish up on the desk of the Secretary of State, and in those circumstances it would not be appropriate for me to offer a view from the Dispatch Box.

[Mr Syms]

May I say how very pleased I am to have my hon. Friend the Minister here replying to the debate? Sometimes greatness is thrust on people at the last minute. I look forward to his response, but my hon. Friend the Member for Bournemouth West (Conor Burns) and I will find it perfectly understandable if he cannot respond to all the points raised.

[Andrew Stunell]

This debate is being conducted in a generosity of spirit that we could perhaps export to other parts of our proceedings at other times.

My hon. Friend the Member for Poole said that he was disappointed that a previous Government had withdrawn funding for the provision of Gypsy and Traveller sites and expressed the view that that had made the situation more difficult. I remind him that this Government have recently announced a grant programme that will enable some 700 Gypsy and Traveller sites to be refurbished and built across England. There is still some money left in the fund, and we are open to receiving bids for the provision of Gypsy and Traveller sites to take advantage of that funding. I understand his point about the added difficulty created by the various planning constraints that arise if it is also thought that significant amounts of money have to be spent, but the Government have responded to that. I appreciate his request for the Government to provide additional encouragement for the three authorities to work together, particularly in the potential co-ordination of police action. I will come to those points in a few minutes.

I want to make it clear that the Government are committed to encouraging sustainable development, and it is extremely important that local authorities plan for the future of their communities, within which there will be Gypsies and Travellers. My hon. Friend will be aware that the Government have taken steps to abolish the regional spatial strategies, and we have published the draft national planning policy framework on which a consultation has concluded and on which a further announcement can be expected shortly. That clearly states that local authorities have a duty to provide a housing supply for residents living in their area, including those within the Gypsy and Traveller community. I welcome the fact that both my hon. Friends said that they recognised the commitment to provide sites.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

I apologise for being a bit delayed in joining the debate, which I was expecting to take place at 10 o’clock. It is always a delight to start these debates earlier, particularly today, as it gives us another hour and 15 minutes to debate this subject. [Interruption.] Not in an intervention, I am reminded.

The Minister talked about councils’ obligations to the community. Does he agree that councils also have an obligation to defend and support the green belt, of which they are the custodians for future generations? Three permanent sites inside the green belt have been earmarked for north Bournemouth. This is not against Travellers per se, but against any form of development on the green belt, which is believed to be sacrosanct. Will the Minister endorse the line that councils must be given the duty, responsibility and power to make sure that green belts are protected?

[Andrew Stunell]

I welcome my hon. Friend as another late arrival at the ball tonight. He makes a valid point relating to the consultation that we have carried out on the planning circulars on Gypsies and Travellers. Indeed, he puts his finger on one of the central concerns that led to the initiation of the consultation. I will come on to the next stages of that process in a little while.

There is an obligation on housing authorities to provide for all their residents, including Gypsies and Travellers. They must therefore make an assessment of what that need is and ensure that their local plan includes appropriate sites. The statutory guidance that we inherited implied that different planning rules should apply when sites were being allocated for Gypsies and Travellers. It is that incongruity between the planning constraints on the development of housing for the settled community and for the Gypsy and Traveller community that has often created difficulties and that the consultation is designed to address.

In providing the funding for new sites, responding to the consultation and developing a new planning framework, we must ensure that we do not simply drive the problem to another place, but that there is adequate provision for Gypsies and Travellers where it is needed. Central to the case of my hon. Friends the Members for Poole and for Bournemouth West is that they want there to be co-operation between the three planning authorities of Bournemouth, Poole and Dorset to ensure that that provision is delivered in the right place in an appropriate and timely fashion. To respond to my hon. Friend the Member for Poole, the Localism Act 2011 places a duty to co-operate in planning matters on local authorities. I am sure that he will want to draw that to the attention of the local authorities and ensure that it is delivered.

Our aim is for the new draft policy to be short, light touch and fair; to put the provision of sites back into the hands of local councils, in consultation with communities; and to protect green-belt land. We are considering the response to the consultation and intend to publish our new policy as soon as possible. Although this goes a little beyond my brief, the House will understand that that is likely to be linked to the publication of the national planning policy framework. The Minister of State, Department for Communities and Local Government, my right hon. Friend the Member for Tunbridge Wells (Greg Clark), has put it on record that we intend to publish the framework before the end of this month. I hope that that is some reassurance that we are very close to producing the final version of the policy that my hon. Friend the Member for Poole seeks.

It is important to put it on record that, like the rest of the population, the majority of Travellers are law-abiding citizens. They should have the same chance to have a safe place to live and bring up their children as anybody else. What is not acceptable is for anybody to abuse the planning system, for instance by trespassing and setting up encampments or other unauthorised developments. Another purpose of the planning circular, on which we have consulted and which will be published, is to ensure that some of the rule-bending that has taken place will be ruled out in future. The Government are developing a package of changes, including the use of incentives, through the planning system to provide a better balance between site provision and enforcement.

To ensure fair treatment of settled communities and the majority of Travellers, we are putting in place a range of measures including the abolition of the architecture of regional planning through the Localism Act 2011—[Hon. Members: “Hear, hear.”] I appreciate my hon. Friends’ support for that measure. We are putting in place stronger enforcement powers for local authorities to tackle unauthorised development and setting out measures to limit the opportunities for retrospective planning permission. My hon. Friends might not be aware that we are setting aside £50,000 to support a training programme run by Local Government Improvement and Development, which is aimed at raising awareness among councillors of their leadership role in relation to Traveller site provision and planning applications.

[Thomas Docherty]

How many councillors will that £50,000 provide training for?

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

Lots.

[Andrew Stunell]

My hon. Friend helpfully says “Lots.” I would be quite happy to provide further information, but it will provide councillors with day-long seminars at local authority level.

I have already mentioned that we have included in the Localism Act a duty on local councils to co-operate. That will require them to engage constructively in the planning process. We have included Traveller sites in the new homes bonus, to reward councils that deliver additional sites. That will mean that councils get financial benefits for building authorised Traveller sites where they are needed.

I have mentioned that we have allocated £60 million of Traveller pitch funding to help councils and other registered providers to build new sites. So far I have signed off bids totalling £47 million, which were announced in January and will lead to the setting up of more than 750 new and refurbished pitches for Travellers. Hon. Members may be interested to know that Dorset county council was a successful bidder for £1.75 million of support.

It is important to rise above the simple planning context, which is what we have mostly concentrated on, and recognise that the Gypsy and Traveller community suffers a very high level of discrimination and deprivation. It has some of the poorest social outcomes in education, health, access to financial services and of course housing.

[Conor Burns]

May I gently put it to the Minister that neither my hon. Friend the Member for Poole (Mr Syms) nor I has in any way sought to denigrate members of the Gypsy and Traveller community or be alarmist about them? We are interested in pushing the Government towards a position in which our local authorities can respond to legitimate need but at the same time give the police the power that they need to move on illegal encampments, which are often positioned in sensitive areas and have an impact on tourism and other matters in our communities.

[Andrew Stunell]

I fully understand my hon. Friend’s point, and I hope to get to that in a sentence or two.

I can report to the House that a cross-Government ministerial-level working group has been preparing proposals on how we can address the discrimination and poor social outcomes that Travellers experience. We have applied the Mobile Homes Act 1983 to authorised local authority sites, to give residents of local authority Gypsy and Traveller sites better protection against eviction.

My hon. Friend the Member for Bournemouth West has once again brought to the House’s attention the question of unauthorised developments and what happens next. As a matter of definition, an unauthorised development is land owned by Travellers but developed without planning permission. The Government are getting tough on unauthorised development. We will not tolerate abuse of the planning system by anyone. Local authorities have a range of powers to deal with unauthorised developments, but the fact of the matter is that planning enforcement remains a problem. The powers include temporary stop notices, which do not normally allow the removal of a caravan that is a person’s main residence. In addition to the measures set out in the Localism Act 2011, the Government are considering strengthening temporary stop notice powers. The measures in the Act include increasing penalties for non-compliance with a breach of condition notice, from a maximum fine of £1,000 to one of £2,500, and limiting the opportunities for retrospective planning in relation to any form of unauthorised development.

Unauthorised encampments—Travellers trespassing on land not owned by Travellers—can be tackled not just through the planning system, but through the criminal justice system and civil courts. The police and local authorities have a range of powers to deal with such encampments. The full range of powers can be used when an alternative site is available in the local authority area. My hon. Friends have pointed out that because of the tight constraints and small geographical areas of both Poole and Bournemouth, it is difficult to establish the availability of such sites in the local authority areas. Their plea is for the Government to consider widening the scope of that measure, possibly using the duty to co-operate. I have taken note of what they said on that point and undertake to respond to them more fully.

[Mr Ellwood]

I am very grateful to the Minister for giving way. With an hour and five minutes left, he has been extremely generous in allowing hon. Members to elaborate on aspects of this important debate. Will he clarify an important issue that affects both Poole and Bournemouth? The regional spatial strategy has been removed and regional development agencies are disappearing, with the 2011 Act replacing them. I understand that Bournemouth borough council now offers in the submission of its core strategy a different paragraph on where Gypsy and Traveller sites can be—it can make the case that Bournemouth is not appropriate and that those people should be placed elsewhere. Will the Minister confirm that? If he cannot do so now—I understand that he stepped in for another Minister—I would be grateful if his Department could write to me.

[Andrew Stunell]

I should make it clear to you, Mr Deputy Speaker, that I do not feel any deep obligation to keep going for another hour and a quarter.

I would not want my hon. Friend to be too premature. The final version of the national planning policy framework has not yet been published. As I said earlier in my remarks, the Minister of State, Department for Communities and Local Government, my right hon. Friend the Member for Tunbridge Wells, has told the House that the intention is that the national planning policy framework should be published before the end of this month. At that point, there will also be a statement on how it comes into force. Until that moment, it would not be appropriate for a planning authority to proceed—indeed, the authority could not proceed, because our proposals of last year have not yet been confirmed. However, my hon. Friend the Member for Bournemouth East and I might have a reasonable expectation that when the framework is in force, the words he has used would be the appropriate ones to apply.

[Mr Syms]

I thank the Minister for responding to this debate. He deserves time off for good behaviour. I am sure that any points that he has not covered can be dealt with later by the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill).

[Mr Heath]

He will visit my hon. Friend’s constituency. [Laughter.]

[Andrew Stunell]

Yes, it has been suggested that I mention that my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) will be only too delighted to visit the constituency of each Member who has spoken. If it is thought appropriate, I will give that commitment on his behalf.

We have discussed matters of real significance and importance to the constituents of the Members who have spoken. I do not seek to trivialise that at all. They have generously said that if there are points that I have failed to cover appropriately, they will give my hon. Friend the Minister another chance. On that basis, I hope that the House will be satisfied with my responses and that in due course the matter can be drawn to a full conclusion.

Question put and agreed to.

21:00

House adjourned.

Written Ministerial Statements

Monday 12th March 2012 Written Statements

Monday 12 March 2012

Principal Civil Service Pension Scheme

Monday 12th March 2012 Written Statements

[The Minister for the Cabinet Office and Paymaster General (Mr Francis Maude)]

On 20 December I reported to the House on the heads of agreement on the principal civil service pension scheme to be introduced in 2015, which set out the Government’s final position on the main elements of scheme design. Since 20 December, my officials have been engaged in detailed discussions with the civil service trade unions over the remaining details of the principal civil service pension scheme. I can now report to the House that discussions on these final details of the scheme design for the principal civil service pension scheme to be introduced in 2015 have now concluded. The Government have made it clear this sets out our final position on scheme design, which we are asking unions to take to their Executives as the outcome of negotiations.

This is the proposed final agreement which reflects the conclusion of discussions on the final details with the civil service unions since I made my written ministerial statement on pension reform, on 20 December 2011, Official Report, column 150WS. The headline elements of the proposed final agreement remain unchanged from those reached on 20 December and the provisional accrual rate has been finalised.

The core parameters of the new scheme are set out below:

a. a pension scheme design based on career average;

b. a provisional accrual rate of 2.32% (equivalent to (1/43.1) of pensionable earnings each year;

c. revaluation of active members’ benefits in line with CPI; (any change in the method of indexation will be subject to consultation)

d. a normal pension age equal to state pension age, which applies both to active members and deferred members (for new scheme service only). If a member’s SPA rises, then NPA will do so too for all post-2015 service;

e. pensions in payment to increase in line with prices (currently CPI);

f. benefits earned in deferment to increase in line with prices (currently CPI);

g. average member contributions of 5.6%;

h. optional lump sum commutation at a rate of 12:1, in accordance with HMRC limits and regulations;

i. spouses/partner pension of three-eighths pension, in line with the current open scheme;

j. lump sum on death in service of two times salary;

k. ill-health benefits in line with those in the current open scheme;

l. actuarially fair early/late retirement factors on a cost-neutral basis;

m. an employer contribution cap and floor to provide backstop protection to the taxpayer against unforeseen costs and risks. This floor will also allow for an improvement in member benefits if the value of the scheme falls beyond a fixed level;

n. abatement will not apply for post-2015 service in the new scheme when members return from retirement. Abatement rules for the current schemes will remain unchanged;

o. partial retirement rules for service in the new scheme will follow existing partial retirement rules. Members with service in both the existing and the new scheme will be able to apply for partial retirement under each scheme, under the limits that exist in current schemes;

p. members will be able to take any pension they have accrued under their existing schemes without having to also take any new scheme pension at the same time, under the limits that exist in current schemes;

q. for members wishing to retire before their state pension age, there will be an opportunity to pay additional contributions to fund earlier retirement of up to three years without an actuarial reduction. Contributions will ordinarily be payable by members, but individual employers will be able to choose to provide a contribution in very limited and exceptional circumstances, that must be approved by the Cabinet Office;

r. existing added years contracts will continue in the new scheme;

s. added pension arrangements will continue;

t. members who leave the new scheme and return within five years will have their deferred benefits increased as if they had been an active member. (The rate of dynamisation for active and deferred members will however be the same, as set out in points c and f above); and

u. the Public Sector Transfer Club will continue, and consideration will be given to the best method of operation in the reformed schemes, following further discussion with trade unions;

The scheme actuary has confirmed that this scheme design does not exceed the cost ceiling set by the Government on 2 November. Copies of the heads of agreement and scheme actuary verification have been deposited in the Libraries of both Houses.

ECOFIN

Monday 12th March 2012 Written Statements

[The Financial Secretary to the Treasury (Mr Mark Hoban)]

The Economic and Financial Affairs Council will be held in Brussels on 13 March 2012. The following items are on the agenda to be discussed:

Financial transaction tax (FTT)

The presidency will update Ministers on the state of play of discussions on the financial transaction tax, and in particular the technical work that is being undertaken on this file. Ministers will then exchange views. The Chancellor has made it clear on a number of occasions that the UK does not support the Commission’s recent proposal for an FTT. As it stands, the proposal will have significant negative impacts on jobs and growth. To avoid a damaging relocation of financial trading, FTTs would need to apply in all financial centres, and not just the EU.

Alert Mechanism Report (AMR)

Ministers will be asked to agree to Council conclusions on the AMR and hold an exchange of views. The AMR is based on a “scoreboard”, where each member state is assessed against 10 macroeconomic indicators, and an accompanying analysis. These are designed to indicate where potential external and internal imbalances may exist. The UK exceeds the threshold values on four indicators: real effective exchange rate, export market share, private sector debt and public sector debt.

The Commission will then conduct in-depth reviews on 12 member states, to assess whether imbalances or excessive imbalances exist. These member states are: the UK, Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Hungary, Italy, Slovenia, Spain and Sweden. These reviews will be published in May. Greece, Ireland and Portugal and Romania are already under enhanced economic surveillance as part of their payment assistance programmes and are therefore not subject to in-depth reviews.

The Government support the macroeconomic imbalances procedure, on which the AMR is based. They are taking determined action to rebalance the UK economy and ensure a return to sustainable growth, including through: tough and credible action to tackle the deficit; a new strategy to increase house building and stabilise the housing market; and boosting exports and rebalancing the economy towards regional growth.

(Possible) Follow-up to the European Council on 1-2 March 2012

The presidency may inform Ministers on the follow-up to the March European Council conclusions. Ministers will then exchange views. On growth, the Council conclusions set out an appropriate time line for addressing the EU-level growth agenda, in line with the Prime Minister’s letter with 11 other member states. The Government are content with the Council conclusions. The intergovernmental treaty was signed by 25 member states in the margins of European Council. The Government welcome the signing of the treaty: it is in the UK’s interest for the euro area economies to achieve stability and growth, and for the treaty to work to achieve this.

Follow-up to the G20 Meeting of Finance Ministers and Governors on 25-26 February 2012 in Mexico

The Commission will debrief Ministers on the main outcomes of the G20 Finance Ministers’ and Central Bank Governors’ meeting in Mexico City on 25 and 26 February. The main items on the agenda were the global economy and framework for growth, IMF resources, financial regulation and commodities. The issue of IMF resources dominated the discussion, and the G20 agreed that euro area countries will reassess the strength of their support facilities in March. This will provide essential input into the G20’s ongoing consideration to mobilise resources to the IMF. At the G20, the Chancellor stressed that IMF resources to support individual countries cannot be a substitute for further credible steps by the euro area to support their currency. The next G20 Finance Ministers’ meeting will be in the margins of the IMF spring meetings in Washington.

Implementation of the Stability and Growth Pact

Following the Council decision on 24 January that Hungary has taken no effective action to sustainably correct its excessive deficit, the Commission has proposed that the Council suspend €495 million of cohesion fund (CF) commitments to Hungary in 2013. Ministers will be invited to adopt the Council decision. The suspension of CF commitments to Hungary represents 0.5% GDP and 29% of total CF commitments for the year. The Commission believes this to be both an effective and proportionate amount. The UK will not oppose the Commission’s proposal.

Information on the informal ECOFIN on 30-31 March 2012

The presidency will inform delegations about the informal ECOFIN which will be held in Copenhagen on 30 and 31 March.

ECOFIN Breakfast

Eurogroup will be meeting on 12 March. Ministers will be debriefed on the Eurogroup discussions, before formal ECOFIN starts. Ministers are likely to discuss the economic situation. Ministers may also discuss the issue of the next president of the European Bank for Reconstruction and Development. The UK supports the need for an open and transparent process in selecting the president.

Teacher's Pension Scheme (England and Wales)

Monday 12th March 2012 Written Statements

[The Minister of State, Department for Education (Mr Nick Gibb)]

On 20 December the Secretary of State for Education reported to the House on the heads of agreement on the teachers’ pension scheme to be introduced in 2015, which set out the Government’s final position on the main elements of scheme design. Since 20 December, Ministers have been engaged in detailed discussions with the teacher and lecturer unions over the remaining details of the teachers’ pension scheme. I can now report to the House that discussions on these final details of the scheme design for the teachers’ pension scheme to be introduced in 2015 have now concluded. The Government have made it clear this sets out our final position on scheme design, which unions agreed to take to their Executives as the outcome of negotiations. This includes a commitment to seek Executives’ agreement to the cessation of any industrial action on pension reform. The final scheme design outlined is conditional on acceptance of this proposed final agreement.

This proposed final agreement reflects the conclusion of discussions on the final details with teacher and lecturer unions since the Secretary of State made his written ministerial statement on pension reform, on 20 December 2011, Official Report, column 157WS. The headline elements of the proposed final agreement remain unchanged from those reached on 20 December.



The core parameters of the new scheme are set out below:

a. a pension scheme design based on career average;

b. an accrual rate of 1/57th of pensionable earnings each year;

c. revaluation of active members’ benefits in line with CPI + 1.6%;

d. normal pension age equal to state pension age, which applies both to active members and deferred members (new scheme service only). If a member’s SPA rises, then NPA will do so too for all post-2015 service;

e. pensions in payment to increase in line with prices index (currently CPI);

f. benefits earned in deferment to increase in line with CPI;

g. average member contributions of 9.6%, with some protection for the lowest paid (subject to the detailed arrangements for determining future contribution structure, as shown in annex A of the proposed final agreement);

h. optional lump sum commutation at a rate of 12:1, in accordance with HMRC limits and regulations;

i. spouses/partner pension in accordance with current provisions;

j. lump sum on death in service of three times FTE salary;

k. ill-health benefits the same as those in the current open scheme;

l. actuarially fair early/late retirement factors on a cost-neutral basis except for those with a NPA above age 65 who will have early retirement factors of 3% per year for a maximum of three years in respect of the period from age 65 to their NPA;

m. an employer cost cap to provide backstop protection to the taxpayer against unforeseen costs and risks (as set out at paragraph 5 and annex B of the proposed final agreement);

n. the public sector transfer club will continue, and consideration will be given to the best method of operation in the reformed schemes;

o. phased retirement arrangements which reflect those in the current scheme, with the additional option of a third drawdown of benefits after a member’s 60th birthday;

p. abatement will not apply to service in the reformed TPS. Abatement rules for the current scheme will remain unchanged;

q. members who leave the scheme and return within five years will have their accrued service in the current (NPA 60/65) scheme linked to their final salary at retirement; and

r. flexibilities to allow members to elect to pay a higher contribution rate in return for a higher accrual rate for a particular year, at full member cost, within existing limits on additional pension.

s. members who in the new scheme have a normal pension age higher than 65 will have an option in the new scheme to pay additional contributions to reduce or, in some cases, remove any early retirement reduction that would apply, if they retire before their normal pension age. Only reductions that would apply in respect of years after age 65 can be bought out and the maximum reduction that can be bought out is for three years (that would apply to a member with a normal pension age of 68 or higher).

The Government Actuary’s Department has confirmed that this scheme design does not exceed the cost ceiling set by the Government on 2 November. Copies of the proposed final agreement and GAD verification have been deposited in the Libraries of both Houses.

Radioactive Waste Management

Monday 12th March 2012 Written Statements

[The Minister of State, Department of Energy and Climate Change (Charles Hendry)]

I am pleased to inform the House of three announcements from my Department—the Department of Energy and Climate Change (DECC)—with regard to the safe management of radioactive waste. First, DECC is today publishing its response to the public consultation on the “Desk-based Identification and Assessment of Potential Candidate Sites for Geological Disposal”.

Alongside the response we are also publishing a high-level framework—informed by our consultation—that sets out the process for identifying and assessing potential candidate sites within volunteer areas in England. The framework more clearly defines stage 4 of the Managing Radioactive Waste Safely (MRWS) process for implementing the geological disposal of higher-activity radioactive waste.

The consultation, which ran from June to September last year, considered how desk-based studies would be used by the Nuclear Decommissioning Authority (NDA) to identify potential sites following a decision to participate by a local community at the end of stage 3 of the MRWS process. It also set out how potential sites would be assessed against agreed criteria and how decisions would be made—both at the local and national level—on which potential sites should go forward for detailed geological assessment in stage 5.

Having considered all responses received during the consultation the Government have concluded there was general support for our proposals for site identification and assessment and for the criteria which will be used to identify and evaluate potential candidate sites.

To accompany the Government response we have produced a framework document which contains the agreed criteria and a high-level description of the desk-based site identification and assessment process for England. It reflects the proposals presented in the public consultation including a number of additions and clarifications to the criteria, in response to comments we received. It confirms that sites will be assessed using multi-criteria decision analysis (MCDA) as a tool to aid decision making and it sets out the next steps to develop this methodology, including the development of scoring scales and the weighting of the criteria.

The Government are committed to a staged siting process based on voluntarism and partnership and the invitation for more communities to come forward to find out more about the siting process remains open. The documents published today demonstrate continuing progress in the process for siting a geological disposal facility for the long-term management of higher-activity radioactive waste. I am placing copies of the documents in the Libraries of both Houses. The documents are also available on the DECC website at:

http://www.decc.gov.uk/en/content/cms/consultations/mrws_ siting/mrws_siting.aspx.

Secondly, I am announcing today the triennial review of the Committee on Radioactive Waste Management (CoRWM). Triennial reviews of non-departmental public bodies (NDPBs) are part of the Government’s commitment to ensuring accountability in public life. In common with all such reviews, this has two aims:

to challenge the continuing need for an NDPB to carry out this role—both its functions and form; and—if it is agreed it should remain as an advisory NDPB;

to review its control and governance arrangements to ensure it is complying with recognised principles of good corporate governance.

I will announce the findings of the review later this year. If you would like further information, or to contribute to the review, please contact my Department at: [e-mail].

Thirdly, I am publishing today a strategy for waste planning bodies, regulators and waste producers on solid low-level radioactive waste (LLW) from the non-nuclear industries (such as hospitals and universities). The strategy provides further guidance on our policy to encourage the disposal of such low-level waste locally where suitable permitted facilities exist. It complements an existing strategy on LLW from the nuclear industries which was published by the Nuclear Decommissioning Authority in 2009. The new strategy is available on the DECC website at: http://www.decc.gov.uk/en/content/cms/meeting_energy/nuclear/radioactivity/waste/low/low.aspx.

NHS Pension Scheme (England and Wales)

Monday 12th March 2012 Written Statements

[The Secretary of State for Health (Mr Andrew Lansley)]

On December 2011, I reported to the House that a heads of agreement had been reached on a new NHS Pension Scheme for England and Wales for introduction in 2015. The heads of agreement set out the Government’s final position on the main elements of scheme design.

Following this, my Department has been engaged in detailed discussions with health sector trade unions and employer representatives over the remaining details for the new NHS pension scheme. I can now report to the House that these discussions have concluded and the outcome reflected in a proposed final agreement. The headline elements of the proposed final agreement remain unchanged from those set out in my previous statement to the House concerning pension reform on 20 December 2011.

The Government have made it clear that the proposed final agreement represents our final position on scheme design. The final scheme design is conditional on acceptance by trade unions of the proposed final agreement. Trade unions have agreed to take this proposed final agreement to their Executives as the outcome of negotiations. Furthermore, the proposed final agreement includes a commitment by trade unions to seek Executives’ agreement to the cessation of any further industrial action on pension reform.

The core parameters of the new scheme are set out below:

a. a pension scheme design based on a career average revalued earnings methodology;

b. an accrual rate of l/54th of pensionable earnings each year with no limit to pensionable service;

c. revaluation of active members’ benefits in line with the consumer price index plus 1.5% per annum;

d. a normal pension age equal to the state pension age, which applies both to active members and deferred members (new scheme service only). If a member’s state pension age rises, then their normal pension age will do so too for all post-2015 service. Those within 10 years of their current normal pension age are excluded and accrued rights will also be related to current normal pension age;

e. pensions in payment to increase in line with inflation (currently consumer price index);

f. benefits to increase in any period of deferment in line with inflation (currently consumer price index);

g. member contributions on a tiered basis to produce a total yield of 9.8% of total pensionable pay in the scheme;

h. optional lump sum commutation at a rate of £12 of lump sum for every £1 per annum of pension foregone up to the maximum limit on lump sums permitted by HM Revenue and Customs;

i. the current flexibilities in the 2008 section will be included in the 2015 scheme—early/late retirement factors on an actuarially neutral basis, draw down of pension on partial retirement and being able to retire and return to the pension scheme;

j. ill-health retirement pensions to be based on the current ill-health retirement arrangements but with enhancement for higher tier awards to be at the rate of 50% of prospective service to normal pension age;

k. spouse and partner pensions to continue to be based on an accrual rate of 1/160th. For deaths in retirement, spouse and partner pensions will remain based on pre-commuted pension;

l. the current arrangements for abatement (for service accrued before and after 2015) will be retained;

m. the lump sum on death in service will remain at twice actual pensionable pay;

n. for members who in the new scheme have a normal pension age higher than 65 there will be an option in the new scheme to pay additional contributions to reduce or, in some cases, remove any early retirement reduction that would apply if they retire before their normal pension age. Only reductions that would apply in respect of years after age 65 can be bought out and the maximum reduction that can be bought out is for three years (that would apply to a member with a normal pension age of 68 or higher);

o. added years contracts in the 1995 section will continue on compulsory transfer to the 2015 scheme;

p. arrangements to purchase additional pension will continue;

q. the public sector transfer club will continue and further consideration will be given to the best way of operating it in the reformed schemes; and

r. there will be an employer contribution cap.

The Government Actuary’s Department (GAD) has confirmed that this scheme design does not exceed the cost ceiling set by the Government on 2 November 2011. The proposed final agreement and GAD verification have been placed in the Library. Copies are available to hon. Members from the Vote Office and to noble Lords from the Printed Paper Office. The documents are also available at:

www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_133003.pdf

Light Dues

Monday 12th March 2012 Written Statements

[The Parliamentary Under-Secretary of State for Transport (Mike Penning)]

The appropriate provision of marine aids to navigation preserves life at sea and protects our coasts from pollution, a task the Government entrust to the three general lighthouse authorities for the United Kingdom and Ireland. However, we must balance this responsibility against the efficiencies demanded of all public sector organisations and our continued drive to minimise cost.

In my written ministerial statement of 26 July 2010, Official Report, columns 75-76WS, I stated my desire to provide the shipping industry with long-term stability in the level of light dues paid for marine aids to navigation. In December 2010, I made a commitment not to increase light dues for at least three years; the industry welcomed it, and I remain committed to it, Official Report, column 24WS.

Over the last year, I have continued to work with the general lighthouse authorities to identify where it is prudent and appropriate to rationalise services, enlisting the expertise of the authorities’ joint strategic board to examine the question of pension liabilities and ever-closer working between the general lighthouse authorities themselves. We have identified and exploited considerable opportunities for greater efficiency, the most notable relating to aids to navigation monitoring centralisation, buoy yard reorganisation and staffing reductions. These have succeeded in lowering running costs substantially, against a targeted five year reduction of 17% the general lighthouse authorities now expect to achieve 19%.

Furthermore, the Department for Transport tendered and replaced part of the general lighthouse fund investment portfolio to facilitate its use for a general lighthouse authorities staff pension reserve; the new portfolio reduces investment risk and facilitates stability.

These initiatives and efficiencies have enabled me to freeze light dues this year. Since I became shipping Minister, there has been a real terms light dues reduction of around 10%.

Personal Independence Payment

Monday 12th March 2012 Written Statements

[The Parliamentary Under-Secretary of State for Work and Pensions (Maria Miller)]

During consideration of the personal independence payment (PIP) clauses of the Welfare Reform Bill on 17 January, the Government announced their intention to have a graduated introduction of the new benefit. To ensure a smooth introduction, the launch will be undertaken through a phased approach, commencing initially with a subset of new claimants. This will ensure processes and procedures are working fully before moving to process all new claims and then reassessing existing disability living allowance (DLA) claimants.

Bootle benefit centre (Bootle BC) will administer the first new claims from spring 2013, from areas including Merseyside, north-west England, Cumbria, Cheshire and north-east England. People in these locations will be the first to claim the new benefit. The primary reason for selecting the Bootle BC is that it handles DLA new claims in volumes that will provide a robust test of PIP processes and new computer systems. During this period, new claimants in all other parts of the country will continue to claim DLA as now.

The remaining network of benefit centres currently administering new claims for DLA will start to take on new claims for PIP from summer 2013, once evidence is in place that processes are working as intended. In addition this network will handle continuing DLA claims for children. Blackpool benefit centre will undertake PIP reassessment activity for existing DLA claimants aged 16 to 64.

House of Lords

Monday 12th March 2012 Lords Chamber

Monday, 12 March 2012

14:30

Prayers—read by the Lord Bishop of Newcastle.

Death of a Member: Lord Wedderburn of Charlton

Monday 12th March 2012 Lords Chamber

Announcement

14:36

[The Lord Speaker (Baroness D'Souza)]

My Lords, I regret to inform the House of the death of the noble Lord, Lord Wedderburn of Charlton, on 9 March. On behalf of the House, I extend our deep condolences to the noble Lord’s family and friends.

EU: Economic and Financial Issues

Monday 12th March 2012 Lords Chamber

Question

14:36

Asked by

[Lord Dykes]

To ask Her Majesty’s Government when they will next hold high-level talks with their European Union partners on economic and financial issues.

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

My Lords, the Government hold high-level talks with all our European Union partners on economic and financial issues at the regular European Union Economic and Financial Affairs Councils. The next Economic and Financial Affairs Council—ECOFIN—is taking place tomorrow, Tuesday 13 March.

[Lord Dykes]

I thank my noble friend for that Answer and wish him well for that meeting. Can he explain carefully to the House why, since we had achieved—with some skill—all our objectives on the innovation, investment and growth programme of the EU at the recent meeting of all the member states, we did not therefore show solidarity by signing the fiscal compact treaty as well, alongside every other member apart from the Czech Republic?

[Lord Sassoon]

My Lords, the fiscal compact intergovernmental treaty was discussed at the European Council on 8 and 9 December. As has been discussed on a significant number of occasions, the UK did not get the safeguards it was looking for and is not a party to that treaty, which is why we did not sign it in the fringes of the European Council on 1 and 2 March.

[Lord Barnett]

My Lords, will the noble Lord accept my congratulations to the Government on following the previous Government’s agreement not to join the euro? Nevertheless, would it not be as well to admit that because of that, unfortunately, the whole question of the survival of the euro is discussed mainly among eurozone Finance Ministers? Why will he not admit it?

[Lord Sassoon]

Well, I have not been asked the question in those terms before. It is for the eurozone members to bear the brunt of sorting out the eurozone. That is exactly what they are getting on with doing, which is why we welcome the fiscal compact intergovernmental treaty as a necessary step towards the remorseless logic that with currency union comes much closer fiscal union. We keep close to it. Meanwhile, we are working with many like-minded states on an ambitious pro-growth agenda, which is what Europe also desperately needs.

[Lord Newby]

My Lords, the noble Lord mentioned ECOFIN, but tonight there is a meeting of the 17 Finance Ministers of the eurozone. Will the UK be represented at that meeting, which is discussing the size of the firewall, and if so, what line will it be taking?

[Lord Sassoon]

No, my Lords; the UK will not be represented at the euro group meeting later today because we are not in the euro group. On the other hand, there will be a debrief of Ministers before the formal ECOFIN starts at breakfast time tomorrow.

[Lord Tomlinson]

The Minister referred in reply to the original Question to the failure to satisfy all our negotiating points. Is he yet in a position to share with the House what specifically were the negotiating objectives and which ones in particular are not satisfied by the financial compact?

[Lord Sassoon]

My Lords, I really cannot add anything to the previous discussions we have had on a number of occasions. It is nice to have the question asked by a different noble Lord this time, but I cannot add anything to what has been said before.

[Lord Lawson of Blaby]

My Lords, reverting to the original Question, would it not be extraordinarily hypocritical and rather puzzling to the British people if we were to sign a fiscal compact to which we had not the slightest intention of being party?

[Lord Sassoon]

Absolutely. I completely agree with my noble friend.

[Lord Eatwell]

My Lords, a Written Ministerial Statement was issued earlier today about the ECOFIN meeting in which it was argued with respect to the financial transaction tax that,

“the proposal will have significant negative impacts on jobs and growth”.

No evidence is provided for that statement. Perhaps the noble Lord can tell us what is the negative impact on jobs and growth of the current stamp duty on share transactions?

[Lord Sassoon]

I believe that the effect of UK stamp duty on jobs and growth is negligible. The European Commission conducted its own assessment of the effect of the financial transaction tax, which is what I think is relevant, and the numbers that have been produced by others indicate the range of negative impacts. We think that it makes no sense to introduce a financial transaction tax on the basis of Europe going it alone without the rest of the world being there.

[Lord Hannay of Chiswick]

My Lords, I am delighted that the Minister has tired of the Kabuki play in which he and I have been indulging for some weeks, and I will not continue that now—

[Noble Lords]

Hear, hear!

[Lord Hannay of Chiswick]

That seems to be popular in an unusual quarter of the House. Can the Minister perhaps tell us how, the previous strategy having failed on 9 December, the Government will set about protecting Britain’s national interests in the area of financial regulation in the current situation in which those proposals are as dead as a dodo?

[Lord Sassoon]

My Lords, the strategy did not fail on 8 and 9 December. We did not sign up to a treaty which it would have been wholly wrong for the UK to sign up to on the terms that were offered. What is happening now and is very positive is that we are working with a significant number of like-minded countries to drive forward the growth agenda. My right honourable friend the Prime Minister was one of 12 Heads of Government who signed up to a letter very much led by us. We have regular meetings with 16 like-minded countries to define and drive forward the pro-growth agenda.

[Lord Peston]

My Lords, perhaps the Minister will enlighten us on one thing. Given that the Liberal Democrats are traditionally Europhiles and the Tory party is at present packed in both Houses with Europhobes, how can we get a rational approach to anything to do with the European economy at all?

[Lord Sassoon]

My Lords, I believe that the coalition is driving forward our agenda on Europe with great coherence. As I have explained, the UK is leading the way not just on the single market and competitiveness issues but issues including Iran, Burma and many other areas on which we are very much at the forefront and lined up with many of our European partners.

[Lord Pearson of Rannoch]

My Lords, when will our estranged political class understand that the euro’s problems are embedded in its construction and cannot be cured by throwing yet more money and sticking plaster at the problems of Greece and others?

[Lord Sassoon]

My Lords, as I have already said, there is a remorseless logic that has to take monetary union towards closer fiscal co-ordination, if not union. That is what the latest intergovernmental agreement is one step towards.

[Baroness Farrington of Ribbleton]

My Lords, why did the Minister not answer at all my noble friend Lord Tomlinson’s question?

[Lord Sassoon]

My Lords, I believe that I did.

Police and Crime Panels

Monday 12th March 2012 Lords Chamber

Question

14:44

Asked by

[Baroness Henig]

To ask Her Majesty’s Government how much money they will make available to each police and crime panel to cover start-up and first-year running costs.

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

My Lords, we are committed to funding police and crime panels to do the job set out for them in the Police Reform and Social Responsibility Act. We will be providing annual funding of £53,300 per panel as well as an additional £920 per panel member per annum for expenses.

[Baroness Henig]

I thank the Minister very much for his response. One of the few things we all agreed on when the police and social responsibility Bill was before the House was the need for these panels to be strong and to operate as effectively as possible under the new governance arrangements for the policing landscape. Does the Minister not agree that these panels will want to meet regularly, probably at least once every other month; that they will have extensive legal and financial needs; that they will need good financial and legal advice; that they will certainly have extensive training requirements in the first year to enable them to operate effectively and cohesively; and that, therefore, the sums he mentioned are totally inadequate to get these panels operating as we would like in the first year?

[Lord Henley]

My Lords, I do not agree with the noble Baroness at all. As the Bill went through, we made the function of the panels quite clear: it should be that of a light-touch approach. We then announced how much money would be available for them, which was £38,300 per year each. We have reviewed that figure in the light of various amendments made to the Bill, particularly some that originated this House. The figure, as I have just announced, has been increased to £53,300. We think that that is enough for the panels to do their job. The noble Baroness ought to remember that these panels are not replacing police authorities; their job is to review the actions of police and crime commissioners.

[Lord Imbert]

In the light of those who have said that they will now put themselves forward as police and crime commissioners, are the Minister and the Government content that they will not bring party politics to bear on policing operational decisions?

[Lord Henley]

My Lords, I am sure that politics will not come into this, but there will be some people who will stand under party colours. However, that does not mean they will necessarily bring politics into this matter. The noble Lord is going slightly wide of the Question, which is about the panels. The important point is to differentiate the job of the police and crime panels from that of the police and crime commissioner.

[Baroness Hamwee]

My Lords, even with a light touch, the panels will have to get to grips with a lot of paperwork and information, and undertake a lot of discussion in order to carry out their job of scrutiny properly. If the amount that is to be provided is insufficient, will members be expected to look to their own stretched local authorities for professional and technical back-up?

[Lord Henley]

My Lords, as I said in answer to the first supplementary question, we have increased by some 40 per cent the amount available to the panels in the light of discussions and thoughts we have had following the passage of the Bill. We believe that it will be sufficient. If individual local authorities wish to spend more, it will be for those authorities to make that decision themselves.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord will be aware that the police and crime panels are the only check and balance on the potential politicisation of our police forces through elected police commissioners. This is not wide of the Question. Will he respond to reports that Mr Kit Malthouse sought to interfere in the Metropolitan Police’s actions in investigating phone hacking? That is but one example of the risk to this new system, in which the police and crime panels are the only defence but the Government are not going to fund them properly.

[Lord Henley]

My Lords, I have made it quite clear that we are going to fund the panels properly. I am not going to respond to the specific allegation made by the noble Lord, but if necessary—if I think it appropriate—I will write to him. What I am making clear is that we think we are providing appropriate funding for the panels to do the job that was set out in the police Bill last year. We think that they can do that because their job is to look at what the PCCs are doing.

[Lord Harris of Haringey]

My Lords, the experience in London is that so far the only information to have emerged from the Mayor’s Office for Policing and Crime, which is a surrogate police and crime commissioner, is a series of listed decisions on the website. How on earth is a police and crime panel outside London going to get to grips with the detail underlying that and the issues determined by the police and crime commissioner, with money that is insufficient to employ more than one or two people in support of busy local authority councillors who will have many other roles in addition to that on the panel?

[Lord Henley]

My Lords, I think that the noble Lord misunderstands—dare I say it?—how local authorities work. Obviously, the funding will be available to provide for some staffing to assist that panel, but within that local authority there will be other officers doing other jobs who will also be able to assist in that role. That does not require the extra funding that he described. However much money the Government offered, no doubt he and others would say that it was inadequate. We made an announcement on how much it would be. Having reviewed it, we have since increased it. We think that it will be sufficient.

Energy: Voltage Optimisation

Monday 12th March 2012 Lords Chamber

Question

14:50

Asked by

[Baroness Worthington]

To ask Her Majesty’s Government what measures they are taking to promote lower electricity bills through the uptake of voltage optimisation, as installed in 10 Downing Street.

[The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)]

My Lords, energy efficiency is the cheapest way of cutting emissions and cutting bills for customers. My department launched the Energy Efficiency Deployment Office, EEDO, earlier this year to drive energy efficiency across the UK economy. EEDO will build on our existing policies, which are already encouraging the uptake of energy efficiency measures such as voltage optimisation.

[Baroness Worthington]

My Lords, I thank the Minister for his response. However, is he aware that voltage optimisation is not receiving all the support that it is due because of its exclusion from the energy efficiency rating system of buildings, known as SAP? This effectively excludes it from many policies that support energy efficiency and is an example of how we adopt an extraordinarily bureaucratic approach to energy efficiency, which is hampering innovation in this area. I hope that he will pledge to do all he can to remedy the situation so that voltage optimisation receives the support that it deserves.

[Lord Marland]

It may be of assistance to noble Lords, although science is not my strong suit, if I explain what voltage optimisation is.

[Noble Lords]

Hear, hear!

[Lord Marland]

I am glad that that finds favour with your Lordships. As on a previous occasion, I am grateful to Wikipedia for supplying this valuable information. It states:

“Voltage optimisation is an electrical energy saving technique which is installed in series with the mains electricity supply to give an optimum supply voltage for the site's equipment”—

in other words, as has been done in No. 10, to which the noble Baroness rightly pointed, and in our department, where we have put in this optimisation technique for reducing our own electricity demand. Therefore, it is very worthy of consideration. The problem with it is that it does not have a universal remit and is not necessarily applicable for domestic use. However, we would certainly encourage all commercial property to use it.

[Lord Redesdale]

My Lords, will the Minister also encourage the development and use of direct-current ring mains in office buildings? This would mean that transformers could be done away with and inverters placed on the tops of buildings to be air-cooled, which would dramatically reduce the amount of energy. The problem with all new technologies is making sure that they meet the energy ratings. I hope that EEDO will look at this, because the department has an obligation under the Climate Change Act 2008 to bring down the amount of emissions coming from the built environment; last year, they went up.

[Lord Marland]

This is already turning into a very technical Question. My noble friend asks a very relevant question: how can we aggregate electricity usage and reduce it by a central technique? That is what the eco-design directive from the EU is encouraging. It is looking at this as an efficiency measure as we speak and I am hopeful that the outcome will be positive.

[Lord West of Spithead]

My Lords, some 255 years ago today, we shot an admiral to encourage the others. Does the Minister believe that we could perhaps come up with some more exciting incentives to make people take energy efficiency more seriously?

[Lord Marland]

I am tempted to shoot an admiral every now and then, although not of course the noble Lord, who has distinguished service. This is all part of the Government’s policy. I shall not rehearse all our marvellous policies at the moment—I am not saying that shooting the admiral is part of the Government’s policy—but clearly the Green Deal is part of them. We reduce demand on electricity and energy by not using it, and we have to find ways of not using it and educate people so to do. That is the only way out of these spiralling upward prices.

[Lord Tanlaw]

My Lords, is not the simplest way to save electricity to incorporate daylight saving into the Government’s policies?

[Lord Marland]

I am really enjoying this Question Time.

[Lord Broers]

I congratulate the Minister on his reply, which is accurate—Wikipedia generally is. Admirals might be electrocuted as well as shot if they do not understand some of these problems clearly. This is a very complex subject with many factors, including the cost of retrofitting a lot of equipment. I looked at some of the data over the weekend and it struck me that the experiment that is being carried out in No. 10 might be quite useful. Can the Minister tell me what efficiency gain No. 10 got and how much it cost?

[Lord Marland]

This is the first question I have been asked. The overall reduction in energy consumption and carbon reduction in No. 10 was 10 per cent. That was in line with government demand. I can tell the noble Lord that we achieved 13.8 per cent over government, but I am afraid I cannot answer his question about specific costs. I shall be happy to write to him on that subject.

[Baroness McIntosh of Hudnall]

My Lords, the Minister said that he was no scientist and I have to say that I share that with him; I am certainly no scientist. However, I fail to understand his answer to the noble Baroness, Lady Worthington. Is or is not the voltage optimisation scheme that she is recommending part of the energy reduction that the Government are trying to promote?

[Lord Marland]

The Government are not here to take on all sorts of design that come in, although we are obviously keen to promote any reduction in electricity demand or supply, particularly in demand—and voltage optimisation is one such thing. It is already in existence. We have led by example, as I have indicated, in our department and No. 10. We encourage all people to look at it on a commercial basis because it saves on electricity demand. I hope that that answers the noble Baroness’s question. I repeat for her benefit that I am not entirely clear whether it is of benefit in domestic situations. I have asked my department to organise a workshop on the Green Deal in the next month to study it carefully.

[Lord Brooke of Sutton Mandeville]

My Lords, is my noble friend aware that in 1757, after the unfortunate death of Byng, a French admiral wrote to Voltaire and said that in similar circumstances he would have done exactly the same thing as Byng. I hope that my noble friend is pleased to have French support in these matters.

[Lord Marland]

I am sure I echo the sentiments of the House when I say that to have French support for anything is rather unusual but extremely valuable. I thank my noble friend very much.

[Baroness Smith of Basildon]

My Lords, I share with the noble Lord the fact that I am not quite scientific either. However, notwithstanding Wikipedia, all we are talking about is being as conscientious about energy efficiency coming into a building as we are about using energy in the building or losing it through poor insulation. The noble Lord has made several references to the Green Deal. Is he aware that currently voltage optimisation us not eligible under the Green Deal for commercial or domestic buildings? When he holds his workshop it would be helpful if he could look at changing the rules of the Green Deal. DECC has saved £19,000 a year on its energy bills, and many businesses would find that advantageous.

[Lord Marland]

I am grateful to the noble Baroness, as always, for her support on the Green Deal and for the work that she has carried out on it. As I said, the reason for the workshop is to look very carefully at the issue to see whether it can form part of the Green Deal. When we have come to our conclusions, I will be very happy to share them with her and with the noble Baroness, Lady Worthington.

Patrick Finucane

Monday 12th March 2012 Lords Chamber

Question

14:59

Asked by

[Lord Dubs]

To ask Her Majesty’s Government what assessment they have made of the effect the lack of a public inquiry into the death of Pat Finucane may have on British-Irish relations and on the Finucane family.

[Lord Shutt of Greetland]

My Lords, the Government believe that the independent review done by Sir Desmond de Silva QC will be the quickest and most effective way of revealing the truth and answering the Finucane family’s questions about what happened to Pat Finucane. The British and Irish Governments continue to work together on a wide range of issues of mutual interest—for example, the economy, commemorations and security matters.

[Lord Dubs]

My Lords, does the Minister agree that demands for a full inquiry into the murder of Pat Finucane have been going on for years? They have come from the United Nations, the European Court of Human Rights, the Dáil, the Irish Government, the US Senate and the House of Representatives. Will he confirm that on 11 October last year at a meeting in No. 10 Downing Street with the Finucane family and their lawyers, the Prime Minister confirmed that he accepted that there has been collusion in the murder of Pat Finucane? Will the Government not accept that they will soon run out of excuses and that until there is a full inquiry into this tragic murder, the world will think that the British Government have something to hide?

[Lord Shutt of Greetland]

My Lords, first, I commend the noble Lord, Lord Dubs, in his efforts to celebrate British-Irish relations in the St Patrick’s Day gala reception that will take place later today.

On the noble Lord’s question, yes, many people have an appetite for an inquiry, but we have to accept that there are two features about inquiries: first, the enormous cost; and, secondly, the enormous delay. Indeed, were an inquiry to have been commenced and were it to take as long as the Bloody Sunday inquiry, it would be 2023 before we might expect a result, which in itself is 34 years after the very sad death of Pat Finucane. Certainly, I can confirm what the Prime Minister said in Downing Street, but Sir Desmond de Silva has been appointed to do his independent review. He has been on the job for five months and we are to expect a report—he has eight months to go.

[Lord Alderdice]

My Lords, it is important for us to address very tragic and, in the past, worrying individual incidents, such as the horrible murder of Pat Finucane. However, my noble friend agree that instead of encouraging individual families to deal with individual incidents now that it is well over a decade and a half since the Troubles came to a close, we should increasingly try to find ways in which the community as a whole in Ireland, north and south, and the many thousands of individuals who have suffered bereavement and trauma—and, as is evidenced, a generation of young people growing up with trans-generational effects on them because of the experience of the previous generation—should be our focus for attention and for the limited resources that can be made available to deal with the trauma of the Troubles?

[Lord Shutt of Greetland]

My Lords, I agree with my noble friend that it is important to look at the many. The Historical Enquiries Team, a devolved matter dealt with by the Police Service for Northern Ireland, was set up in September 2005 to investigate some 3,259 unsolved deaths. To date the team has looked into 2,423, which is three-quarters of the deaths on which the team has either done the job or is getting on with the job at present. Clearly, that is very important work. Yes, there is more important work to be done, and work continues to be done in discussions between the Secretary of State and the devolved Assembly.

[Lord Empey]

My Lords, I met the Finucane family to discuss their call for an inquiry into Mr Pat Finucane’s outrageous death. The family told me that they had no intention of accepting an inquiry held under the 2005 legislation, even though other inquiries promised at the Weston Park negotiations were in part held under that legislation. Will the Minister confirm that government policy remains that there will be no more open-ended and expensive inquiries? If he cannot confirm this, I must call upon him to initiate inquiries into the tragedies at the La Mon House Hotel, the Kingsmill massacre, Omagh, and many more.

[Lord Shutt of Greetland]

My Lords, it is indeed the Government’s position that we should not go in for further lengthy, costly inquiries. We want to see this work continued, as I mentioned to my noble friend, with the Historical Enquiries Team and with other work that can proceed.

[Baroness Smith of Basildon]

But my Lords, I am not aware that in the case of Pat Finucane anybody has been asking for an open-ended, expensive inquiry along the lines of the Bloody Sunday inquiry that the Minister mentioned. Noble Lords will recall that the agreement between the British and Irish Governments at Weston Park had commitments from both Governments as part of a package of measures to implement the Good Friday agreement, including on inquiries and other matters such as police and security. In that agreement, a decision was taken to appoint a judge of international standing from outside both jurisdictions to undertake a thorough investigation of allegations of collusion in a number of murders, including that of Pat Finucane. This was not a stand-alone inquiry but part of a package of measures agreed by the British and Irish Governments, on which the Irish Government have fulfilled their part, while the British Government have pulled back on just one of the inquiries, having had the other. Does the Minister understand how this impacts on trust between the two Governments, given that agreement made in 2001 between them? I appreciate that he may be constrained in his response, given that there is a judicial review on this decision at the moment, but it also gives the Government a breathing space in which to think again. I urge the Minister to take that space and do so.

[Lord Shutt of Greetland]

The response I would make to the noble Baroness is that there was an agreement in 2001, and we had got to 2010 and nothing had happened. We had a Government in office who had had nine years, and it was not possible: the noble Lord, Lord Empey, referred to what the family was willing to accept, and so forth. When the new Government came in, one of the first things that the new Secretary of State did was to meet the family and discuss things, then eventually to come to a view on whether there is another way forward. As I indicated, Sir Desmond de Silva has been at work now for five months; let him finish the task.

Health and Social Care Bill

Monday 12th March 2012 Lords Chamber

Private Notice Question

15:07

Asked By

[Baroness Royall of Blaisdon]

To ask Her Majesty's Government, in light of the decision of the information tribunal last week, whether they will publish the risk register associated with the Health and Social Care Bill before that Bill completes its Report stage in this House.

[Baroness Royall of Blaisdon]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the tribunal has agreed that the department should not publish its strategic risk register but has upheld the Information Commissioner’s initial decision notice on the transition risk register. However, we await the full judgment, which will contain the detailed reasoning for the decision. This makes it extremely difficult to make a decision on whether the Government wish to appeal this decision. I hope very much that the tribunal will give its full judgment as soon as possible.

[Baroness Royall of Blaisdon]

My Lords, the primary purpose of this House is to scrutinise and improve legislation. I know that the Minister would agree with me on that. In the next 10 days, Parliament has to make critical decisions about the future of the National Health Service. Without the information in the risk register or the transitional risk register, Parliament will be less well informed than it otherwise would be. The information tribunal last week instructed the Government to release the transitional risk register immediately, as I understand it, because the Bill is still under consideration. Why are the Government therefore preventing Parliament from having the best possible information on the NHS so that it can make the best possible decisions about the NHS?

[Earl Howe]

My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.

[Lord Falconer of Thoroton]

My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.

[Earl Howe]

My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.

The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.

[Lord Harris of Haringey]

My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific Bill in front of your Lordships’ House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes—if such a thing were possible—has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.

[Earl Howe]

My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.

[Lord Deben]

Does my noble friend agree that a number of the laws passed by the previous Government were also controversial? Can he point to occasions on which the risk register was released in those circumstances?

[Earl Howe]

I am grateful to my noble friend because I do not believe that there were any. The Opposition sometimes point to the risk register relating to the third runway at Heathrow, but the key difference with that was that it was to do with policy implementation rather than policy formulation. Once you know what you want to do, there are risks associated with rolling a policy out. It is a very different matter when civil servants wish to have safe space to think the unthinkable and then advise Ministers.

[Lord Campbell-Savours]

Does the Minister intend to delay the Third Reading of the Bill?

[Earl Howe]

We have a Motion before us in the name of the noble Lord, Lord Owen. That question will be addressed then.

[Lord Hughes of Woodside]

My Lords, the Minister said that the details of the risks had been well canvassed in this House. If that is the case then in the absence of proper information, with the best will in the world, the discussions must be based on hearsay. That cannot be the right way to go about discussing business.

[Earl Howe]

My Lords, I think back to numerous debates that we have had in this House, which of course are recorded in Hansard. Many of the risks that I articulated on 28 November last have been gone through by your Lordships almost ad nauseam.

[Lord Marks of Henley-on-Thames]

What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?

[Earl Howe]

I have personally seen to it that the tribunal has been made aware of the urgency of releasing its reasons, and it has acknowledged that urgency.

[Lord Grocott]

Presumably, part of the need for urgency is the Government’s scheduling of the Third Reading of the Bill. I know that we are close to the end of an unprecedentedly long Session of Parliament but it would be an intolerable situation if the information were finally published after the Bill had become an Act and the information were then judged to have been such that many Members who had voted in favour of Third Reading would regret it within weeks. Surely the very least that the Government could do is to postpone the Third Reading debate until the last possible date before the end of the Session.

[Earl Howe]

My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.

[Lord Peston]

Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government—certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks—is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?

[Earl Howe]

My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be—indeed, is certain to be—misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.

Localism Act 2011 (Consequential Amendments) Order 2012

Monday 12th March 2012 Lords Chamber

Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012

Motions to Refer to Grand Committee

15:17

Moved by

[Baroness Hanham]

That the draft orders be referred to a Grand Committee.

Motions agreed.

Insolvency Act 1986 (Disqualification from Parliament) Order 2012

Monday 12th March 2012 Lords Chamber

Motion to Refer to Grand Committee

15:17

Moved by

[Lord Shutt of Greetland]

That the draft order be referred to a Grand Committee.

Motion agreed.

Protection of Freedoms Bill

Monday 12th March 2012 Lords Chamber

Third Reading

Relevant document: 20th Report from the Constitution Committee.

15:18

[Baroness Anelay of St Johns]

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

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

Amendment 1

Moved by

[Lord Selsdon]

1: Clause 38, page 33, line 41, at end insert—
“32C Evidence gathered by non-public bodies using directed surveillance and covert human intelligence sources
Public bodies shall not adopt for the purpose of a prosecution evidence of offences which attract a maximum custodial sentence of six months or less gathered by non-public bodies using directed surveillance or covert human intelligence sources.”

[Lord Selsdon]

My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.

The amendment follows on from the Private Member’s Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people’s homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.

When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister—the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like “Stonewall” Jackson or Cool Hand Luke, who plays a bat and will not let things go past him—confirmed at that time that he accepted the proposals in the Bill would ban the use of covert surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.

When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,

“see whether we might come forward with some suitable change”.—[Official Report, 13/12/11; col. GC 329.]

He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.

It seems that my amendment was what the “pros” call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.

I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:

“Abstract nouns in -io call

Feminina one and all;

Masculine will only be

Things that you can touch or see”.

Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.

Other matters came up. One of the difficulties with Private Members’ Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people’s freedom. We should debate this matter further. I beg to move.

[Lord Marlesford]

My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.

However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.

We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.

[The Earl of Erroll]

My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.

Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle—to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.

I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action—a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.

15:30

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

My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.

My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.

My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.

My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill—I have explained on a number of occasions why that is not appropriate—but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords—I think he said 50 per cent of them—cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities—in particular, the Library, which works wonders in providing noble Lords with access to such things.

We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.

[Lord Selsdon]

I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by

[Baroness Royall of Blaisdon]

2: Before Clause 64, insert the following new Clause—
“Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment), for subsection (2) substitute—
“(2) A person guilty of an offence under this section is liable on summary or indictable conviction to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”
(3) For section 4 (putting people in fear of violence) substitute—
“4 Offence of stalking
(1) A person (“A”) commits an offence, to be known as the offence of stalking, where A stalks another person (“B”).
(2) For the purposes of subsection (1), A stalks B where—
(a) A engages in a course of conduct,(b) subsection (3) or (4) applies, and(c) A’s course of conduct causes B to suffer fear, alarm, distress or anxiety.(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear, alarm, distress or anxiety.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear, alarm, distress or anxiety.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—
(a) was authorised by virtue of any enactment or rule of law,(b) was engaged in for the purpose of preventing or detecting crime, or(c) was, in the particular circumstances, reasonable. (6) In this section—
“conduct” means (inter alia)—
(a) following B or any other person,(b) contacting, or attempting to contact, B or any other person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to B or to any other person,(ii) purporting to originate from B or from any other person,(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication, or making improper use of public electronic communications networks or leaving messages of a menacing character,(e) entering any premises,(f) loitering in any place (whether public or private),(g) interfering with any property in the possession of B or of any other person,(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,(i) watching or spying on B or any other person,(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and“course of conduct” involves conduct on at least two occasions.
(7) For the purposes of this section, a person makes improper use of an electronic communications network of electronic communications service or other social media if—
(a) the effect or likely effect of use of the network or service by A is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety, or(b) A uses the network or service to engage in conduct, the effect or likely effect of which is to cause B, another person, unnecessarily to suffer annoyance, inconvenience or anxiety.(8) The Secretary of State may by regulation add further forms of conduct to subsection (6)(b).
(9) A person convicted of the offence of stalking is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum or to both.(10) Subsection (9) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in summary proceedings, the court—
(a) is not satisfied that the accused committed the offence, but(b) is satisfied that the accused committed an offence under section 2.(11) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””

[Baroness Royall of Blaisdon]

My Lords, it is of enormous significance that today we are debating amendments that would create a new criminal offence of stalking. At Second Reading, I said that this Bill presented us with an opportunity to address an important loophole in our law that meant that those subject to the sustained and harrowing experiences of stalking were not receiving the recognition and protection that they needed and deserved. I therefore warmly welcome the fact that the Government now accept that the law needs changing.

This change in policy is a tribute to campaigners—in particular, the National Association of Probation Officers and Protection against Stalking, as well as the members of the independent parliamentary inquiry, chaired by the right honourable Member for Dwyfor Meirionnydd, Elfyn Llwyd, whose report has been so influential, and, most importantly, the victims. I refer to women such as Tracey Morgan, Sam Taylor and Claire Waxman, who have shown the most extraordinary courage in speaking out for reform. I am grateful to the Minister for meeting me on Thursday last week to inform me of the amendments, although at that stage I was not able to see them. Now, having looked at them, I am concerned that there are some deficiencies.

A specific criminal offence of stalking is not just about raising awareness. Indeed, ensuring that stalking is named as a crime and that specific examples of stalking behaviour are set out in statute are certainly part of the solution. It will mean that police officers and prosecutors who use the 1997 Act as their operational framework will be able better to recognise and respond to cases of stalking. However, that is only part of the problem. The other, perhaps most significant, issue is that, even when stalking is identified, the police are unable to bring successful prosecutions against stalkers that will result in adequate sentences. The overwhelming evidence from the independent inquiry showed that the law is currently a barrier to just sentencing because the evidence required for stalking to be tried as an indictable offence is, in practice, too difficult to provide.

The two new offences proposed by the Government do not seek to remedy that. In fact, they perpetuate this key deficiency in the 1997 Act by continuing the distinction between what they consider low-level stalking offences, as in proposed new Section 2A, which are subject to a maximum sentence of six months, and serious cases of stalking, as in proposed new Section 4A, for which it must be proved that the victim suffers a fear of violence. However, we already have this distinction in the 1997 Act between Section 4—putting a person in fear of violence—which was originally intended to cover cases of stalking and carries a maximum of five years’ imprisonment, and the Section 2 offence of harassment, which covers lower-level offences and has a maximum sentence of six months. As noble Lords will know, Section 4 is very rarely used by the police because fear of violence is in practice very difficult to prove. As a result, cases of stalking are usually prosecuted under the Section 2 offence, meaning that most convicted stalkers come away with a sentence of just a matter of days or no custodial sentence at all and are free to continue to traumatise their victims and, in some terrible cases such as those of Clare Bernal and Jane Clough, to murder them. Of the estimated 120,000 cases of stalking in the UK per year, in 2009 just 786 people were found guilty under the existing Section 4, which concerns putting people in fear of violence, with only 170 given a custodial sentence, most of no more than weeks.

I am therefore extremely concerned that, by simply creating two new offences as an addendum to the existing Section 2 and Section 4 offences, we will continue to see prosecutors unable to prove fear of violence opting to jail stalkers who have waged sustained and terrifying campaigns against their victims under new Section 2A, the basic offence of stalking, with a maximum of six months in prison.

Two women, both victims, who met the Prime Minister last Thursday—International Women’s Day—were given an assurance that things would be changed, but they then found out that their circumstances would not be covered by Section 4A as currently drafted, as it would not be possible for the police to prove that they were in fear of violence, yet both women were stalked for six and 10 years respectively and have suffered terrible psychological trauma. Both suffered mental breakdowns, both have sought medical treatment for extreme stress and anxiety, and both have little or no confidence in the criminal justice system, which has consistently let them down.

Under the amendments, the perpetrators would still be tried in the magistrates’ court and, even if they received the maximum sentence of six months, they would be released automatically at the halfway point and would be back in the community after four weeks if tagged. Because of the near impossibility of proving fear of violence, perpetrator after perpetrator has been given ludicrously lenient sentences in the magistrates’ court and has consistently broken restraining orders, with none receiving treatment or rehabilitation. The independent parliamentary inquiry, expert witnesses from the police, the National Association of Probation Officers, Protection against Stalking and victims are all absolutely united in the view that Section 4A must be amended to “fear, alarm, distress or anxiety” so as to apply explicitly to cases where severe psychological damage has been caused but no explicit threat of violence or physical attack has been made.

It is staggering that the Government are proposing to retain the fear of violence distinction, despite such evidence. It is also staggering because in Scotland we have a clear legal precedent for a single offence of stalking without fear of violence. The Criminal Justice and Licensing (Scotland) Act, which was introduced in 2010, created a single offence of stalking, triable either way, with a maximum sentence of five years’ imprisonment. It is then up to prosecutors and the courts to decide at what level the case should be heard.

My Amendments 2 and 3, on protection from stalking, would replicate the Scottish model of a single offence of stalking, listing types of stalking conduct, triable either way, and would replace a duty on the Secretary of State to ensure adequate training and support for implementation. However, in the event that the Government are not willing to accept this alternative proposal, I have also tabled amendments to their amendments. With the inclusion of these amendments, I believe that we can ensure that the two stalking offences that the Government propose would deliver adequate sentencing of offenders and protection for victims.

Amendments 10, 11 and 12 make changes to proposed new Section 4A that would widen the scope of the offence to apply to cases causing the victim to suffer fear, alarm, distress or anxiety. That would ensure that for cases such as Claire’s, where it is impossible to prove fear of violence, where the victim has suffered years of psychological trauma the stalker will be eligible for the maximum sentence of five years. Amendment 9 would allow cases tried under the basic offence of stalking, created by proposed new Section 2A, to be referred up to the Crown Court for sentencing, if magistrates deem it appropriate: for instance, when new evidence came to light to suggest a sentence higher than six months were required. If theft can be tried either way, we believe that it is wrong to set such limitations in a trial of stalking.

Amendments 7 and 8 make changes to the list of examples of acts that should be considered in certain cases as amounting to stalking in order to allow for the addition of other forms of conduct in the future. I know that the Government will wish to argue that proposed new Section 2A states that these are examples and that therefore flexibility is already provided, but it is important to understand that the police will look to what is contained within the law for their operational framework. Therefore, we think that it is important to make it clear that the list is not exhaustive and provides for the addition of new types of behaviour, such as cyberstalking, that may arise in the future.

Finally, Amendment 14 would mean that, if an individual had been arrested for stalking, the police would have the power to enter their property without a warrant in order to prevent any evidence being destroyed. It would in fact return the power that previously existed in cases of harassment but that was removed as an unintended consequence of the Serious Organised Crime and Police Act 2005.

Too many women have already died at the hands of their stalkers and I am glad that the Government agree that we must act now to provide greater protection for the women and men who have had their lives stolen from them by this harrowing crime. It is for the sake of these and future victims of stalking that we believe that it is vital that we get the changes right. We must address the problems of the existing law in full. Therefore, I strongly urge the Government to listen to the experts and victims and to support these amendments to their proposals today.

[Lord Henley]

My Lords, it might be convenient if I intervene at this stage, partly because I have government amendments in this group—Amendments 6, 13, 16, 18, 29 and 32—partly so that I can explain what we are intending and partly to deal with some of the concerns raised by the noble Baroness and to pre-empt some of the debate, particularly as we are at Third Reading. I shall also speak at the end of the debate to deal with any points that have been made.

I am very grateful to the noble Baroness not only for her explanation of four of the amendments but because she has raised this issue throughout the passage of the Bill, as she was quite right to do. She was also right to pay tribute to Elfyn Llwyd, to his inquiry in another place and for all that that has done, for which we are grateful.

The noble Baroness referred to the comments from my right honourable friend the Prime Minister last Thursday on International Women’s Day. The Government made the point that:

“Stalking is an issue which affects many lives, often in devastating ways. That is why we are taking it seriously and introducing these new offences”—

my right honourable friend made it clear that we would bring forward amendments to the Bill—

“Offenders need to know that they will be brought to justice for making others’ lives a misery. We will do all we can to protect victims of stalking more effectively and to end this appalling crime”.

He said:

“we’ve got to make sure that as a separate criminal offence, it’s combined with: better training for the police; better training for the probation service; better training for our courts; better action by technology, telephone and digital companies, so we stamp out this evil”.

Throughout the House we agree that tough action needs to be taken, that new offences need to be introduced and that sentences must reflect the severity of the crime. The only thing that we disagree on is the drafting on how to achieve this aim.

15:45

Perhaps I may go through the government amendments. The new offence set out in government Amendment 6 will introduce two new, free-standing offences of “stalking” and “stalking involving fear of violence” that will sit alongside the existing harassment offences in the Act and will attract the same maximum penalties. The new offence of stalking under new Section 2A will be tried in the magistrates’ court, with a maximum penalty of six months’ imprisonment or a fine of up to level 5 on the standard scale—currently £5,000—or both. The new offence of stalking involving fear of violence under new Section 4A may be tried either way, in the magistrates’ court or the Crown Court. If tried in the Crown Court it will have a penalty of up to five years’ imprisonment or an unlimited fine, or both.

The noble Baroness tabled a number of amendments to Amendment 6. I will deal briefly with each of them. Amendments 7 and 8 relate to the list of examples of acts or omissions that may be associated with stalking. The list of behaviours is designed to provide examples of the core behaviours associated with stalking. This is a non-exhaustive list and will therefore cover forms of behaviour not yet developed. That is why it states, “for example”. For this reason there is nothing to be gained from adding the words “inter alia” as proposed by Amendment 7. The relevant subsection is already explicit that the list of acts or omissions provides examples only. Moreover, the use of the word “examples” has the advantage of being in English and so will be clear to police and prosecutors, who might not understand “inter alia”—although I imagine that they normally do.

Amendment 8 seeks to add a catch-all of,

“acting in any other way that would cause a reasonable person to suffer fear or alarm”,

as well as a power to add to the list of behaviours by order. As I indicated, the list provided is designed to be a non-exhaustive list of core behaviours associated with stalking. As such, it is not a definitive list of behaviours and so would cover other stalking behaviour that would cause a reasonable person to suffer fear or alarm. Moreover, given that the list is indicative, it is not necessary to take a power to add to it. Should it prove necessary to do so, we can issue guidance to the police to inform them of other behaviours that might be equally applicable. We want to ensure that we do not give stalkers an excuse to try to circumvent this legislation.

Amendment 9 seeks to make the new Section 2A offence an either-way offence with the same maximum penalty—five years’ imprisonment—as the new Section 4A offence. We need to take into account the behaviours criminalised by the new offence of stalking. Given that such behaviours fall short of putting someone in fear of violence, we believe that it is appropriate that this should be a summary-only offence attracting the usual maximum penalties for such offences.

The new Section 4A offence will be an either-way offence that may be tried in either court, and will attract higher penalties when tried on indictment. In this regard, it is worth pointing to the government amendment to Schedule 9, which adds the new offence of stalking involving fear of violence to the list of violent offences in Schedule 15 to the Criminal Justice Act 2003. The effect of this is that a conviction for such an offence can attract a public protection sentence which, under proposals in the LASPO Bill, will be an extended sentence. Such a sentence will see offenders serve at least two-thirds of their sentence in prison and be subject to longer periods of supervision on licence. We can therefore make a real distinction between lesser and more serious cases. We will accompany these offences with guidance and training for the police and prosecutors so that they understand this too. I believe it would be wrong to muddy the water between these two offences. If the concern is that the existing Section 2 offence is not being properly dealt with at present, and, together with the new Section 2A offence, will not be in future, then it is the practice on the ground that we must tackle, not the offence itself.

Amendments 10, 11 and 12 seek to extend the new Section 4A offence of stalking involving fear of violence. The suggestion appears to be that this offence will be difficult to prove because of the requirement to show that the alleged victim was in fear of violence. The noble Baroness, Lady Royall, has suggested that her Amendment 2 is preferable as the test there is whether the alleged victim suffered fear, alarm, distress or anxiety. Our approach with these two new offences, as with the existing harassment offences and many other areas of the criminal law, is to have a tiered approach which reflects the seriousness of the offending behaviours. Alarming a person or causing them distress would be caught by the summary offence of stalking. As such, an individual who stalked a person so as to cause them alarm or distress would be rightly charged with that offence.

If more serious behaviours were present, and those behaviours made the victim fear that violence would be used against them, then that would rightly attract the more severe penalties available for the Section 4A offence. I recognise that fear of violence may not of itself fully cover the trauma suffered by victims in the more serious cases of stalking. Such victims may not always be in fear of physical violence but they none the less suffer serious psychological harm. I recognise that we need to include this concept in our new Section 4A offence.

Having put down this amendment only late on Thursday last week, I accept that it is rather difficult to make manuscript amendments at Third Reading, but I ask the noble Baroness not to press her Amendments 10 and 12 on the understanding that the Government will bring forward amendments to the new Section 4A offence to import a reference when the Bill returns to the House of Commons next Monday. One could take any form of words: “severe alarm”, “severe distress”, “serious psychological harm” or similar wording. I do not want to get bogged down on the precise wording at this stage. We are still considering the precise formula, but it is important that I make an assurance that we are very keen to make sure that serious psychological harm gets included within that amendment.

I have asked my officials to meet Napo, which has played a key role in the independent inquiry conducted by Elfyn Llwyd on stalking, later this week to discuss the appropriate wording. I know that it has been speaking to a number of your Lordships—including, no doubt, the noble Baroness—and that it shares the concerns about the psychological impact that stalking has on victims. I also undertake to share the wording of the further amendment that we would bring forward in another place with the noble Baroness, and others, in advance of tabling it. Obviously, we will have to move fast later this week but, as she is aware, we have been capable of nimble footwork in the past.

Government Amendment 13 will introduce a new search power—I appreciate that search powers are somewhat controversial on occasions—exercisable by warrant for the lower-level stalking offence to allow the police to search for equipment used to stalk and to gather the evidence necessary to secure convictions and prevent stalking behaviour escalating. There is already a power of entry for the Sections 4 and 4A offences. Amendment 14 to government Amendment 13 seeks to add a further power of entry exercisable by a constable without a warrant or the consent of the occupier. This further power would apply to both the new stalking offence and the existing harassment offence.

We take the view that only those offences serious enough to be tried on indictment, such as our new Section 4A offence, should attract entry and search powers exercisable without a warrant following arrest. The new Section 2A offence, as a summary-only offence, is by definition less serious, and we consider that requiring a warrant for a search under new Section 2B represents an appropriate balance between protecting people from stalkers and respecting the rights of those who, at the point of the search, are unconvicted and therefore innocent in the eyes of the law.

Amendment 3, tabled by the noble Baroness, Lady Royall, introduces a requirement on the Secretary of State to ensure that serial stalking offenders are flagged on the police national database. I assure her that whenever someone has been convicted or cautioned for a stalking offence, as with any other recordable offence, that conviction or caution will be so recorded. If a local police force has information that a person may be a stalker but there is insufficient evidence to charge them, that information would be recorded on local police systems and reflected on the police national database, which can be accessed by all UK forces.

The police national database is an important new development, allowing greater visibility of all local records for investigative and policing purposes, and should be fully operational within the next 12 months. The management of all police information, national and local, is obviously a matter for chief officers, including whether information is or should be flagged up on the PNC. None the less, any such information held on local systems may, if relevant, be disclosable on an enhanced criminal record certificate.

The second part of Amendment 3 requires the Secretary of State to lay before Parliament an annual report on the implementation of an offence of stalking. Again, I am not persuaded that there is a need to impose a statutory duty to this effect. However, I can assure the noble Baroness that we will keep the new offences under review, and I am confident that the Government will face pretty thorough scrutiny on this issue as time goes on—as they should—and will, as a result, report to Parliament on these matters from time to time.

We hope that creating specific offences of stalking, along with a new search power, will raise the profile of this crime and ensure that more stalkers are brought to justice. However, we recognise that a change in the law alone is not enough. The Government’s revised action plan, Call to End Violence against Women and Girls, published only last Thursday, includes several actions to raise awareness of stalking and improve the training and guidance given to both police and prosecutors.

We believe that the government amendments deliver the outcomes sought by campaigners on this issue. They strengthen the law by providing for two new offences of stalking. We take this issue very seriously. If we did not, the Prime Minister would not have focused his speech on International Women’s Day on this subject.

On this basis, I hope that after we have had a debate the noble Baroness will feel able not to press her amendments, on the understanding that we will bring forward changes to the government amendments in another place to address her point about the psychological harm suffered by the victims of stalking. If she insists in pressing her amendments, I invite the House to reject them and support the Government’s alternative proposals.

[Lord Campbell of Alloway]

My Lords, briefly, I congratulate the noble Baroness on her amendment, which has filled a gap in criminal law. I also congratulate the Government on giving an assurance that they will deal with its implementation, which they need to think of with care because it is not going to be so easy to implement.

16:00

[Baroness Brinton]

My Lords, I am very grateful to the Minister for the Government’s considerable progress on stalking law reform since Report and for the government amendments laid before your Lordships’ House. I am also grateful for the amendments tabled by the noble Baroness, Lady Royall, which help to clarify some of the issues that many of us believe remain outstanding.

I am particularly grateful for the Minister’s clear response to the noble Baroness, Lady Royall, on her Amendments 10 to 12 which amend government Amendment 6. The issue around the Government’s new Section 4A and the insertion of the words “fear, alarm, distress or anxiety”, in whatever form that might take, as proposed by the noble Baroness, Lady Royall, really concern those of us who have been involved in stalking law reform for some time. There seems to have been confusion in some of the discussions outside your Lordships’ House. As long as “serious” and “severe” relate only to the psychological issues and not to fear of physical violence, that is a very helpful clarification. I am looking forward to the Commons consideration of Lords amendments next week.

The omission of those words in the government amendments today has caused complete consternation among victims, their families and the organisations working for stalking law reform. Those of us parliamentarians on the People’s Inquiry into Stalking Law Reform made it absolutely clear in our report that the serious psychological effects of stalking can be as devastating as violence. Often, the consequences are more long term—long after the physical bruises and the scars have diminished.

Last Thursday, three courageous victims—Tracey Morgan, Sam Taylor and Claire Waxman—who have all campaigned for stalking law reform for many years, discussed the need for reform and related it to their own cases. In his very welcome speech launching the reform on International Women’s Day, the Prime Minister made the point about long-term psychological damage to victims such as Tracey, Sam and Claire. I really hope that it was an oversight in the speed to get the government amendments out that these key and vital words were omitted from new Section 4A.

Last week, many victims and their families were talking at No. 10. They were initially overjoyed and relieved that at last the scourge of stalking would be recognised for the horrible and serious crime that it is and no longer lumped in, as we have said before in this House, with neighbourhood disputes. Many victims are diagnosed with post-traumatic stress disorder and others have breakdowns, all of which fits well with the description read out by the Minister.

Given the time that I have taken up in your Lordships’ House outlining the need for training and guidance throughout the criminal justice system, I was particularly pleased with the Prime Minister’s speech last week from which my noble friend quoted earlier in this debate. I am also pleased that another place will have the opportunity to discuss this key reform, as all the debate on stalking and the Protection of Freedoms Bill to date has been in your Lordships’ House. In particular, this will give Elfyn Llwyd MP, the chair of the People’s Inquiry into Stalking Law Reform, the opportunity to comment on these very welcome government amendments, even if some minor details need to be sorted out. The inquiry team, Protection against Stalking and the National Association of Probation Officers have worked cross-party and tirelessly to influence the Government. It has been a privilege to be a small part of that team.

I want to end by endorsing the Government’s amendments with the words of Tracey Morgan which seem particularly pertinent today. She said:

“The victims I hear from are saying the same things I was 15 years ago—what’s changed? We need to do more. This is about murder prevention”.

It is wonderful news that the Government are doing more and I know that that will prevent murder and other serious crimes against innocent victims of stalking. I hope that those who have long championed the change in the law will, at last, be able to hand the problem over to those in the criminal justice system, which is where it should be.

[Baroness Howe of Idlicote]

My Lords, as one of those who have taken part in the inquiry, I congratulate the Government on what they have come around to; that is, a serious awareness of the horrendous crime of stalking. In many cases the advent of the internet has been very valuable, although it is now quite often used for cyber stalking and this horrendous crime. It has to be tackled.

I also congratulate the noble Baroness, Lady Royall, on her attempt to produce the right form of words for this part of the Bill. On this point, I have one sadness, and that is that there is not a completely separate Bill on stalking. We all know how crowded our agendas are, but that would have been an important step. An actual Bill dedicated to stalking would stand out and attract everyone’s attention. In the mean time, I hope the Government will agree to the amendment tabled by the noble Baroness, Lady Royall. Picking up the threads, it sounds as if there really is a basis for giving the other place an opportunity to debate this important subject because I think that some of them are hardly aware of the issue. That would be an added plus.

There must be a clear understanding that what must be discussed are the horrendous psychological effects of this crime, which have been very well set out by the noble Baroness, Lady Brinton, who is an expert in the field. It is a form of psychological violence that may not be as visible as physical violence against women but, my goodness, the long-term effects are huge. With my fingers crossed, I hope that the right conclusions will be reached not just between all these Benches but between both Houses.

[Baroness Hamwee]

My Lords, the Government are indeed to be congratulated on having moved so positively and with such comparative speed following the report and their own consultation. I also congratulate the members of the parliamentary group and the individuals who have so bravely spoken out. I have one point to put and one question to ask.

The point is to encourage the Minister—not that I think he needs to be encouraged—with regard to the terminology, “fear, alarm, distress or anxiety”, as well as violence. I want to mention to the House that last week during the Report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, my noble friend Lord McNally, the Minister at the Ministry of Justice, put forward a definition of domestic violence that was agreed. It covers,

“threatening behaviour, violence or abuse whether psychological, physical, sexual, financial or emotional”.

As I say, I do not think that my noble friend needs encouragement, but if that is useful ammunition to pass on to those who are doing the drafting and who might be a little resistant to the extension, I hope he can use it. My question is about remedies. There is a provision in Section 3 of the 1997 Act for a restraining order. When the Act is amended, will that section remain available for use by a victim of an offence under either of the new sections? I am sorry that I did not give my noble friend notice of my question, but it only occurred to me during the first speech in this debate. Would Section 3 have to be used or is there an inherent right in the courts? I am thinking of an extreme situation, although they are all extreme, where someone is given a custodial sentence, but there is also a concern that he should stay away when he comes out of prison. I am particularly prompted in this because of the provision in Schedule 1 to the legal aid Bill which allows for civil legal aid services to be provided in relation to an injunction made under Section 3 of the Protection from Harassment Act 1997. I hope that everything which needs to be can be swept in the last knockings of this issue.

[Lord Hodgson of Astley Abbotts]

My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, “I hope that you will be very happy in your new home”. Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.

My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson—that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.

[Lord Marlesford]

Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships’ amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition’s Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.

16:15

[Lord Henley]

My Lords, my noble friends Lady Brinton and Lady Hamwee were absolutely correct about getting the wording right. That is why I wanted to make it quite clear that I could not give the precise words at this stage and why it is very important that we have further discussions, as I promised, with Napo, which will take place this week. I along with other colleagues in the ministerial team will make sure that we get the wording right.

I also note the point made by my noble friend Lady Hamwee about the importance of consistency of language between one piece of legislation and another, and what she said about the legal aid Bill. The danger of inconsistency is that when legislation comes to be interpreted by the courts they have to think why Parliament has used different words on different occasions. So I note what my noble friend had to say and we will discuss it during the week. However, I cannot give any cast-iron guarantees at this stage other than what I have said. My noble friend Lady Brinton said how happy she was that the amendments would now give an opportunity for another place to discuss these matters.



The noble Baroness, Lady Howe, said that she would prefer a completely separate Bill. However, in the nature of these things, that is not always possible. My right honourable friend the Prime Minister recognised that here is an opportunity where we can do something, particularly in the light of the earlier discussions we had had on the Bill—I again pay tribute to the noble Baroness, Lady Royall—and the commitments I had given on Report. I hope that we can make some progress on that front but, obviously, it cannot be the Bill that the noble Baroness would like in an ideal world. This is not always an ideal world and we sometimes have to make use of what we have.

My noble friend Lady Hamwee also asked about remedies, particularly in relation to the point she made about the restraining order. I can assure her that the restraining order is contingent on Section 1. It remains unchanged and therefore will be incorporated into the stalking offences. I understand that it can be used for the offences under proposed new Sections 2A and 4A. If I am wrong about that, I shall get back to my noble friend and all other noble Lords as quickly as possible.

The point made by my noble friend Lord Hodgson about having been a victim of stalking some years ago was a useful intervention. It reminded the House that this offence does not necessarily affect only women but can affect people of either sex. We have to remember that point even though, in the main, victims tend to be women. That is why my right honourable friend the Prime Minister made his announcement on another day.

I hope that both in this brief intervention and in my earlier remarks I have satisfied most of the points raised by the noble Baroness. I will listen with care to what she has to say and then it will be for the House to make up its own mind.

[Baroness Royall of Blaisdon]

I am grateful to the Minister and to all noble Lords who have participated in this short but excellent debate.

I understand what the noble Baroness, Lady Howe, said about ideally having a separate Bill. However, I am delighted that the noble Lord has taken the opportunity to introduce these offences into the Bill. It means that more women and men will be protected in the very near future. Who knows how long a separate Bill would take to get onto the statute book.

On the amendments I have tabled, I well understand that the House would not be behind Amendments 2 and 3 and I accept that. On Amendments 7 and 8, I hear what the Minister said about his words being merely examples and I reluctantly accept that. However, the police in Gloucestershire would certainly understand “inter alia”, even if the police in Cumbria would not.

I was disappointed by the Minister’s response to Amendment 9 for two reasons. From time to time, cases are discussed by a magistrates’ court but, in the course of the proceedings, it becomes clear that the evidence shows there is more to a case than at first seemed. It would then be entirely appropriate for the court to decide that the case should be tried in a Crown Court so that an offender could be given the maximum sentence if necessary. I am also very concerned about repeat offenders. As we know, in the past there has been a problem for victims who have suffered from people who have offended time and time again. Under the proposals put forward by the noble Lord, if someone repeats a minor offence, he or she will continue to be tried in a magistrates’ court—it will be a summary offence—and on each occasion they will be eligible for a maximum sentence of six months. I do not think that that is enough.

The key amendments are clearly Amendments 10, 11 and 12. I hear what the Minister says and am grateful for his assurances that the Government will bring forward new wording that will take into account serious psychological harm, which can be absolutely devastating, as the noble Baroness, Lady Brinton, said. In fact, in some ways it can be even worse than the fear of physical violence. The words in my amendment are those proposed by the independent inquiry, the victims and the experts, and are tried and tested words that have been proven to get results in Scotland. Why will the Minister not accept my amendment and then, if necessary, look at the matter more closely before it is discussed in the other place? I am glad that the other place will, in any event, have an opportunity to debate these very important issues. Although I fully accept the Minister’s proven good intentions as well as those of the Prime Minister, I am slightly concerned that throughout the very welcome process that we have undergone as a result of the deliberations in this Chamber, at each stage there has been a slight impediment to the progress that could properly and better be made. I am concerned that we will not get the wording that we in this House and everybody deems necessary. Therefore, I would feel much more comfortable if the Minister could say that he accepted my amendment and would then act accordingly in the House of Commons.

I also have some concern about Amendment 14. Under current legislation, those arrested for relatively minor drugs or theft offences can have their premises searched on the advice of a police inspector that a warrant is not required. That makes the whole issue relating to stalking seem to be less important. As we know that cyber-criminals are becoming more and more active, I am worried that if people have to wait for a warrant the necessary material in the house could disappear before a warrant is obtained and the premises properly searched. Therefore, I have concern about Amendment 14.

I am very grateful to the Minister for having come as far as he has come. I know that he is pushing the boundaries to ensure that we get the right results in the end with the appropriate wording in the Bill. However, I urge the Minister at this late stage to accept Amendment 11. I am withdrawing my amendment with a slightly heavy heart because I want to be confident that the Bill is absolutely right to guarantee the safety of men and women and ensure that perpetrators of stalking are not only apprehended but imprisoned and given the right treatment where necessary. I would also like to withdraw the amendment knowing that we will have a further opportunity briefly to consider and vote on these issues in the consideration of Commons amendments at the next stage in this House. Will the Minister accept Amendment 11, the key amendment with the key wording, which is of such importance to victims, campaigners and all those involved in these issues?

[Lord Henley]

My Lords, I made it clear to the noble Baroness that I could not accept Amendments 10, 11 or 12—all three go together. The point I was trying to make is that we want to get this wording right, and I do not want to be bound by precisely those words. We have moved pretty fast since the end of our consultation and the end of the independent inquiry. We have brought forward this amendment, which we announced last week. I then made it clear that we would have further discussions with NAPO on this matter. That is what I want to do. I do not want to bind us before we have those discussions by accepting the precise wording of those amendments. That is why I made it clear in my opening speech that we wanted to address the spirit behind them but that we wanted to discuss these matters further. I cannot accept Amendments 10, 11 or 12, but the noble Baroness has heard the commitment I have made. With that, I hope that when we finally get to those amendments—I appreciate that we have one or two debates to go before then—she will feel it is not necessary to move them. We can discuss them after another place has discussed them.

[Baroness Royall of Blaisdon]

I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3 not moved.

Clause 64 : Restriction of scope of regulated activities: children

Amendment 4

Moved by

[Lord Harris of Haringey]

4: Clause 64, page 53, line 9, at end insert “and includes the monitoring of verbal, sign language and written communication between the supervised person and such children”

[Lord Harris of Haringey]

My Lords, this group of amendments deals with the vetting and barring of people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.

The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.

I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,

“revises the definition of regulated activity which includes all the positions covered by vetting and barring arrangements. If positions are not included in regulated activity employers will not have to check people who work in these roles and even if they do, they will not be told if the individual is barred from working with children or vulnerable adults”.

The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:

“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements”.

16:30

Let us be clear: this is not about activities that take place in a supervised environment. Obviously, you would trust any organisation to have arrangements to ensure that a child is not abused in a classroom or changing room. The risk is in the relationship that may build up between a child and someone who is in a supervised setting but who is a volunteer and has not been subject to proper vetting where the child and their parents will assume that that is a trusted person, someone who is safe. The risk is that the undesirable contact will not happen in school, at the after-school club or in the sports facility; it will happen separately and elsewhere because there has been an assumption that that person is trusted.

At an earlier stage the Minister talked about the role of parents and said that they also had a duty to protect their children. No one is denying that, nor is anyone suggesting that it is possible with these arrangements to protect every child from every adult who may have malign intent towards them. However, this is about trying to ensure that you can protect children appropriately under the circumstances. I ask noble Lords to put themselves in the position of having a child in a setting that they assume is secure and where they assume that staff are properly vetted, only to be told after some appalling event, “Well, we checked but we didn’t have access to all the information about that individual because it was on the barred list and not included in the extended CRB check”, or, “We didn’t need to check because the individual was subject to day-to-day supervision”.

At an earlier stage the Minister promised us that guidance was going to be issued about the nature of day-to-day supervision and about what could and could not be applied for. The purpose of my Amendment 4 is to try to make it clear how difficult it will be to frame that guidance appropriately. It is trying to say that, unless you are supervising the relationship between that adult and that child to the extent that you know the nature of all the conversations and the contact taking place between them, you do not know whether you may have created an environment in which the adult may abuse the child outside that setting. It is so easy for a helper to say, “Oh, I’ve got the latest version of such-and-such a computer game at home; if you want to see it, friend me on Facebook and I will make the arrangements”. Unless day-to-day supervision prevents those conversations, that is where the vulnerability occurs. That is why there is a risk around this issue. I would love it if the Minister could stand up and tell us how the guidance would prevent those situations from happening. I hope that with this amendment I have clarified that that is the sort of thing that needs to be covered within that guidance.

There are a number of alternatives here. One would be for a school, a club or whatever to say to children and parents, “We have got proper vetting information about the following people who your child will encounter, but we are not able to obtain full vetting information about all the others”. That is not a satisfactory arrangement for the adult who is included in the second list, and it is certainly not an adequately safe arrangement.

I am not clear how guidance on the issue of supervision is going to protect children. That is why I put my name to Amendment 5, which tries to move the argument on to say that it is important that organisations that are engaging volunteers and so on have the right to be given all that information. You are put in an appalling position if you run a youth club and have tried to do everything that you can, so you have run a CRB check, but you do not know, because you are not allowed to know, that the individual concerned is in fact barred from contact with children. However much day-to-day supervision there is, and however well specified it is in the Government’s guidance, that situation will not be remedied.

In responding to these amendments, I hope that the Minister will demonstrate how the Government will take on board the real concerns expressed by your Lordships from all four corners of the House, and make sure that Parliament is not inadvertently creating an appalling loophole that will put children at risk in the future. I beg to move.

[Lord Bichard]

My Lords, I will speak to Amendment 5, which is in my name. Since it is a complex issue, I hope your Lordships will bear with me while I explain precisely what is in that amendment. Inevitably, I may trespass on some of the ground that the noble Lord, Lord Harris, has already touched on.

Essentially, the amendment has four components. The first provides that anyone who permits an individual to work regularly and closely with children, in whatever setting and even if the activity is not regulated, can obtain an enhanced criminal record certificate, which will disclose any convictions and any intelligence held by the police about that individual and which is relevant to that employment. It is important to note that the responsibility for deciding whether such a check is necessary would in future rest with the employer and not be required by law. The employer would be the person who makes a judgment on whether such a check is needed, based on their knowledge of the activity and the local circumstances concerned.

The second component provides that the Secretary of State will offer guidance on what is meant by “regular and close contact”, which will help employers to make their decision.

The third part provides that the guidance should also recommend that enhanced criminal record checks be made where individuals work regularly and closely with children.

The fourth part of the amendment would ensure that the enhanced criminal record checks should also give access to suitability information relating to children under the provisions of the Police Act 1997. Put simply, this would give access to information about individuals who are barred from working with children or vulnerable adults in a regulated activity, and whose names therefore appear on one or other of the so-called barring lists.

The Minister may well find this last component of the amendment difficult. It might be argued that information that causes an individual to be barred from working with children in a regulated activity is not relevant to their working with children under supervision in a non-regulated activity, even if the contact is close and regular. I take a contrary view to that argument for the following reasons.

First, anyone working with a child in situations in which they have an opportunity to develop a bond of trust can groom that child and then exploit the bond of trust when they are not being supervised. No amount of supervision, however intensive, can prevent that bond of trust being established. We all know that the opportunities to exploit it are increasingly available, not least via social networking sites.

The second reason why I do not accept that argument, which was touched on by the noble Lord, Lord Harris, is that children build trust with individuals who work with them in, for example, youth clubs, colleges or sports clubs. However, that trust is not exclusive to those settings. If they encounter that adult on other occasions, they are likely to invest the same trust in them and therefore be vulnerable to them. That is why the issue for me is not, and never has been, the quality of supervision, but rather whether the adult might pose a risk to the child. If someone is on a list which bars them from working with children in unsupervised situations, it seems to me that that information should be made available to employers who are considering whether or not to allow those persons regular and close access to children. Not all noble Lords will be aware that one in five of the people on the barring list has not come in contact with the police; they are there because of information that has been provided—for example, by previous employers.

I ask noble Lords to envisage the circumstances whereby an individual is allowed to work with children on a close and regular basis following a CRB check, that individual then abuses a child and the employer subsequently discovers that the individual was on a barred list but that this information had not been made available to them because of this legislation at the time they took the decision to employ that person. That would be very difficult to justify and explain to the employer, the parent, or indeed to the public at large.

This amendment is not about allowing more CRB checks to be made; it is for employers to take that decision. It is not about the state requiring employers to do something which some might regard as unnecessary. It is simply about giving employers the data which are available and which will help them to make an informed decision. I have sought in this amendment to produce a system which is simple and proportionate. Therefore, I have avoided distinguishing between settings such as colleges, schools and clubs. Instead the amendment refers to “regular and close contact” wherever it occurs. I have left the final decision with the employer. I accept that the current arrangements are not proportionate and are too bureaucratic, but we must ensure that any revised arrangements are comprehensible, consistent across settings and place the safety of the child above all other considerations.

16:45

[The Lord Bishop of Hereford]

My Lords, I welcome hugely the amendment in the name of the noble Lord, Lord Harris, and that in the name of the noble Lord, Lord Bichard. I particularly welcome them because I firmly believe that they need to be accepted as they would strengthen the Bill and make it a much safer document.

From the point of view of the churches, other faith groups and voluntary organisations, the amendments have the great advantage of making it possible for the first time within the Bill for there to be CRB checks for volunteers. To my mind, without these amendments, there is a serious omission in that regard. By broadening out that eligibility, the amendments would allow the churches to have CRB checks for Sunday school teachers, youth workers or perhaps organists who have the role of musical director for children’s choirs.

This is a complex area regarding how we within the churches, and therefore within the church communities, have been able to check using eligibility that has until now conferred by either the broad understanding of regulated activity as it has been hitherto, or having to use the concept of regulated positions from the Criminal Justice and Court Services Act 2000. However, there has until now been no recognition in the Bill of the role of the volunteers; hence, my welcome for the two amendments in the group.

Amendment 5 in the name of the noble Lord, Lord Bichard, specifically includes making those responsible for the employment and appointment of people who meet the definition eligible to make enhanced CRB checks and obtain suitable information, which we understand, and hope will be understood, to mean the vetting and barring information to which the noble Lord has made reference. However, I would make a slight qualification to what he said. He used the term “employer” throughout most of his speech, although his amendment does not do so. I want that term to be understood to include, say, a church that has volunteers, and for “employer” not necessarily to mean paid employees. Provided it is understood to include volunteers, we would be of one mind on this.

The amendment gives space, as we have been told and as the wording makes clear, for the Secretary of State to define what is meant by the phrase “regular and close contact”. Those words could be a little slippery. It is difficult for us within our churches to be specific as to what “regular” means, and we commend the approach used in Scotland, where the protection of vulnerable groups scheme also requires regular contact, but “regular” is defined there as a core part of the role rather than by a weekly or even monthly requirement. I ask noble Lords to picture a situation, perhaps in one of our village churches in our diocese of Hereford, where there might be only a monthly Sunday school or family service and where the key adults have regular but only monthly contact. Or, perhaps in one of our more urban situations, there might be a holiday play scheme whereby the adult workers, although they may regularly be involved each year, would be there for only four or five days a week in the summer holidays. However, in all those situations, the workers get to know the children well and, as the noble Lords, Lord Harris and Lord Bichard, said, the point is about access.

However, I would add a further dimension to what they said. This is also about the authority that we the church give if these workers are used, and known to be used, as volunteers within the life of the church. It makes the child think, “That is the nice Mr So-and-so who I know from church, so he is safe”. That is the assumption made. We are responsible for giving that authority, and that is part of what concerns me so strongly and why I welcome this amendment. It recognises that when such volunteers take a role, even if it is not frequent but is nevertheless regular, it is possible to build up authority and therefore trust, as well as access. That access is not about just the supervised range of the activity. The access exists outside; and that is the crucial part for me. We have been reminded that access is there within social networking, but it should be recognised, please, that access is available in lots of other ways. Half the population of the diocese of Hereford, which includes south Shropshire as well as Herefordshire, live in villages of 500 people or less. If you live in a village of 500 people, your family knows all the other families, and there is therefore trust and access. You are bound to see people at other times. It is inevitable, and that is the nature of community and village life. To say that because the regulated activity is safe, everything else is safe, is frankly not sufficient. We are responsible by giving authority and access. Therefore, it is crucial that we can also have the CRB checks.

I emphasise my strong welcome for the amendment; I would love it to be extended from just children and young people to vulnerable adults, because we could have had the same debate on the same issues there.

[Baroness Walmsley]

My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.

I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.

I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.

We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.

As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.

That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information—not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.

That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.

[The Earl of Erroll]

My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.

I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.

The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.

The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However, what about those who cannot do anything about it because they do not know that someone—possibly for a thousand and one reasons—has given information which could be blocking them?

My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children—the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher’s union defended the teacher’s right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.

We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, “You don’t fit in. Your face doesn’t fit—we think there’s something wrong about it”; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.

[Baroness Howarth of Breckland]

My Lords, I support the amendment of the noble Lord, Lord Bichard, and I understand why the noble Lord, Lord Harris, has tabled his amendment as an example. I say to the noble Earl who has just spoken that I, too, live in the real world—having spent more years in it than I am prepared to admit—dealing with victims and abusers. That is why I believe it is crucial that the Government listen very carefully to what is said on this amendment. It is only describing close and regular contact, and that is the absolute key.

This week, the Lucy Faithfull Foundation celebrates 20 years’ work. As the noble Lord will know, Lucy was a very eminent Member of his Benches. During that time, the foundation undertook all the background work that has led to the understanding of grooming. Other organisations have picked up that work and developed it, but the basic work was developed and continued by that foundation. That work informs the knowledge of grooming and how children develop relationships and trust in adults whom they get to know in settings where they believe that they are safe. Indeed, I remind the noble Lord that some children are seriously abused within those settings. I cite the example of a teacher who regularly abused a number of small children in a classroom, until he was found out. These people are clever; they are totally able to deceive; and we have to recognise that the law has to be as clever as they are.

17:00

I accept, as the noble Lord, Lord Bichard, said, that some of the regulations have not been appropriate. I recognise that the stewards who are to look after the Jubilee run in my local village now have to be checked, but they should not be checked because they will not have close and regular contact. The general public became very concerned and anxious about the fact that ordinary folk, doing an odd bit of volunteering, might be caught by the checks.

The other difficulty is that, if you work in a number of voluntary organisations, you have to be checked for each of them. The actual system has never really caught up with modern life. You do not want to know how many police checks I have. They are in a little folder and they have to be updated regularly. That is bureaucratic nonsense. Those are the kind of issues to which the Government should turn their minds and not to removing the protection of children.

Like the noble Lord, I too accept that something needs to be done about employment tribunals, but that is a totally different issue. The fact that the disciplinary procedure that takes people through schools and other organisations is protracted is bad for children as well as adults. I have known children who have been dragged through places for months, not knowing what is going to happen, before even the main case comes to court. That is an issue but it is not the same issue and it should not allow your Lordships to be distracted from the main point, which is protecting children.

I pay huge tribute to the noble Lord, Lord Bichard, who has carefully set out his points, which is why I am not trying to go through his intellectual arguments. I am simply trying to appeal to your Lordships’ consciences in relation to where we are in protecting children in this country, which is a good place. The noble Baroness, Lady Walmsley, has played her part in getting us to this place. Many noble Lords have worked towards it. Remember, the noble Lord, Lord Bichard, like many of us who work in this area, knows about the pain. Soham taught him a great deal about the pain that is caused if you do not pay attention to this. Soham concerned someone who was previously known but who was not properly checked before he worked in the school.

I have dealt with the stories of children and families that you would not wish to hear: from those whose children’s lives have been totally destroyed to those who have lost children. Therefore, all we are asking the Government to do is to ensure that when someone is in close and regular contact with children—not the steward and not a parent who goes on a group trip once a year—they are checked and that those checks are given to employers.

The church is another very good example. I have worked with people in churches who have had to deal with situations where wonderful people, as they are described, turned out to be serial and serious abusers. The Lucy Faithfull Foundation staff work not with nasty-looking people in raincoats but with respectable, professional, well meaning, well presented adults, who turn out to be the most horrendous predatory paedophiles. We must remember that and protect our children.

[Baroness Heyhoe Flint]

My Lords, I regret that I was not able to be present for the debate on Report, and I am therefore glad to have this opportunity to make brief comments on the progress that has been made on this part of the Bill. In the long innings of the Bill, I started off as an attacking batsman working with the sports and recreation sector in seeking to knock certain aspects of it out of the ground. I am now sufficiently reassured to play a steady, forward-defensive, strong and resolute stroke against the proposed amendment.

In previous debates, my sporting colleagues and I, including my noble friend Lord Addington, highlighted the concerns voiced by the sport and recreation sector, which has more volunteers than any other sector in the United Kingdom—no fewer than 2 million. The central concern was that the term “day-to-day supervision” was not workable for organisations that safeguard children in a wide range of specialised and unique environments. However, I very much welcome the clarity provided by the amended qualitative description of supervision, and was greatly encouraged by the assurance given by the Minister on Report that sports organisations would have precisely the discretion that they need in determining the appropriate level of checking for voluntary roles.

In counteracting the arguments put forward by the noble Lord, Lord Harris, I am grateful to the Government for having listened and responded in this way. My sentiments are echoed by the England and Wales Cricket Board, the Football Association and other members of the Sport and Recreation Alliance, which represents more than 300 governing bodies. The Government have struck the right balance and arrived at a proportionate place, and I look forward to hearing what the Minister will say today.

The governing bodies of sport are keen for this receptive dialogue to continue, and I welcome the Minister’s other assurances on Report that his department will work alongside the sport and recreation sector to develop guidance and implement the new safeguarding framework, including in the further education sector. The noble Baroness, Lady Walmsley, spoke about that. Organisations that administer sport and recreation will need to plan well in advance of changes to ensure that the new system is implemented effectively. Therefore, anything that the Minister can say to reassure the hard-working staff of these governing bodies about the timeline and the process of the consultation will be greatly appreciated.

In conclusion, my key point, having had several in-depth meetings with the Minister and his team, and consulted very widely with national governing bodies of sport, is that we have been assured that safeguarding children will always be a priority of this Government. Safeguarding is the responsibility of everyone—the Government, employers, voluntary organisations and communities. The Government can ensure proper eligibility for criminal record disclosures for those working with vulnerable groups. However, it is also the responsibility of employers and voluntary organisations to ensure that they have in place proper, risk-based safeguarding mechanisms that protect children, and that they do not rely solely on a criminal record or barred-list check. Additionally, taking some supervised work out of regulated activity will give employers and administrators scope to make the appropriate judgment, and will reduce the burden on employers and encourage volunteering.

We in the sector that I represent have been assured that statutory guidance on supervision will be provided. The Bill makes it clear that supervision must be reasonable in all circumstances for protecting the children concerned. People working closely with children but not within regulated activities will be eligible for enhanced criminal record certificates. It is not right to provide barred-list information on enhanced criminal record certificates that does not relate to regulated activity. The information is not relevant to employers who are not providing regulated activities, and could lead to too many people being barred from work in which barring is not relevant. This action could significantly expand the scope of the scheme, possibly to greater numbers than proposed by the old scheme. With this proportionate and balanced understanding and government assurances, I feel it would be unwise to support Amendment 5 because it would take the regime back to something that would be disproportionate and would discourage volunteering across all sectors of life.

[Baroness Butler-Sloss]

My Lords, I very much support what the noble Baroness, Lady Howe, said from her enormous experience. I suggest that the House and particularly the Minister should take very careful account of it. Saying that means that I very much support what the noble Lord, Lord Bichard, said about his amendment, which I also support. I do not at the moment think that I support what the noble Lord, Lord Harris of Haringey, said. The amendment tabled by the noble Lord, Lord Bichard, is the one that matters.

The important point is regular and close contact with children. I listened with some dismay to the noble Baroness, Lady Heyhoe Flint, because I am not sure that she is talking about what we are talking about. I do not believe that what she said is really what we are concerned with on this amendment. I am a school governor—I am going to a governors’ meeting tomorrow—and I have been CRB checked, but I cannot see for what reason I should be CRB checked because I never see a child without someone else there. Even when I go around the school, I am always accompanied. That is not what this amendment is about. It is about regular and close contact with children, as I said, and that is the point on which noble Lords should concentrate.

[Baroness Randerson]

My Lords, I thank the noble Lord, Lord Bichard, for putting forward this amendment. His huge experience and understanding of this issue give this amendment strength across the Chamber. Noble Lords will be aware that in the earlier stages of the Bill I put down amendments in relation to further education in particular. From the start, I have been very concerned that the Government’s vision of the world of education is just too neat and tidy and has clear demarcation lines. In practice, life is not like that. The Association of Colleges, which represents the colleges, shares those concerns. It suggested that further education and sixth-form colleges should be placed in the same category as schools. The amendment tabled by the noble Lord, Lord Bichard, uses a form of words that takes a different, but appropriate, approach. It is a subtle, flexible approach that is suitable across a variety of settings, not just in further education or the world of education as a whole but in the church, voluntary organisations, leisure activities and so on.

In practice, young people develop relationships of trust with people to whom they can directly relate and who are helpful to them. Indeed, they often fight shy of relating to, liaising with or trusting the people who are formally in charge of a situation. Very vulnerable young people will instinctively shy away from figures of authority, so very often they develop a bond of trust with the lady in the canteen who gives them a extra-large helping, the IT technician who helps them sort out their computer, the lady in the library who does not give them a fine when they bring a book back late, or even the groundsman who has found them smoking secretly in a corner and has not told people in authority. Therefore, it is not easy to define that situation.

17:15

I was concerned because I believed the Government had overlooked the fact that tens of thousands of 14 to 16 year-olds are educated in further education colleges. It is important to remind ourselves that children are under 18 and that two-thirds of A-levels in this country are taken in further education colleges—many, of course, by adults but also a very large number by 16 to 18 year-olds.

In addressing our remarks, perhaps the Minister could refer to vulnerable adults. There are many of those in further education colleges, but also in a variety of leisure settings, which could be covered by the definition in the amendment tabled by the noble Lord, Lord Bichard. The Government need to address that situation.

Finally, I very much welcome the fact that Amendment 5 puts the onus on employers. It makes it clear that good and responsible employers will be expected to seek that information. The noble Earl, Lord Erroll, referred to risk. It is important that we accept that we cannot rule out risk. Risk will always exist, but this amendment puts the onus on good employers to act in this appropriate manner.

I look forward to the Minister’s response and I very much hope that he will be able to reassure us that the Government have taken the purpose of this amendment to heart.

[Lord Hodgson of Astley Abbotts]

My Lords, I participated in the Second Reading debate in November. I have not participated in the stages since, although I have read the proceedings in Hansard with some care. I intend to ask my noble friend to reject these amendments but, before I turn to the substance of my remarks and because this is such a difficult and emotional subject, I hope the House will permit me a brief diversion.

At Second Reading, I made it clear that I thought the activities of those who preyed on children—or vulnerable adults, as the noble Baroness has just said—were repulsive. That was the word I used then and I use it again this afternoon. I went on to argue for the need for proportionality and the measurement of effectiveness and impact and so forth. Therefore, I was very disappointed when the noble Lord, Lord Rosser—I am pleased to see him in his place on the Front Bench—said in his winding-up remarks:

“It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety”.—[Official Report, 8/11/11; col. 219.]

I regard that as a cheap shot. I am happy to be told that my judgment is wrong, that my understanding of the law is wrong or that the practical implications of what I am proposing are wrong, but I am not prepared to be told that I put the reduction of the regulatory burden before the safety of children. That was unfair.

The noble Baroness, Lady Howarth, gave the House a graphic explanation of her work in this area. I will just add my own few words. My wife’s cousin is a forensic pathologist, and he undertakes for the noble Lord’s department post-mortems of the most searing kind. I talked to him about his work and I asked him if he did not find it rather macabre. He said, “Not really, because I am a detective. Some detectives will crawl across the carpet looking for clues in the fibres. I am finding the clues in people, and I am therefore able to convict the guilty and let the innocent go free”. Because I am squeamish, I also say, “Isn’t it rather strange to be dealing with corpses?”. He said, “By the natural order of things you get used to it but when we have a child brought into our post-mortem room, there is a palpable change in the atmosphere, the tension and the behaviour of the team”. Whatever I am saying about the need to not accept these amendments, it is not because I think that children should not be protected. That forensic pathologist’s stories of the things he has seen are harrowing beyond belief.

On 6 February 2012, the second day on Report, in moving his amendment, the noble Lord, Lord Bichard, said,

“first, that we cannot create a risk-free society; secondly, that the steps we take to minimise risk should be proportionate. For those reasons, I very much sympathise with and support the Government in seeking to strike the right balance in this very difficult area”.—[Official Report, 6/2/12; col. 107.]

I say amen to that. I entirely agree with the noble Lord. I further agree that getting the balance right is exceptionally difficult.

However, I argue that to some extent the Government have already got the balance right, which is why I shall ask my noble friend to resist this amendment. I do so for three reasons: first, it changes the relative importance of judgment as opposed to process; secondly, there is a bandwagon effect in this whole area, which will result from some of the wording of the noble Lord’s amendment; and, thirdly, there is the danger that this amendment will contribute to the further atomisation of our society.

On judgment versus process, I follow some of the remarks made by the noble Earl, Lord Erroll. When I was taking evidence on the preparation of the report Unshackling Good Neighbours, it was astonishing how many people saw the official check as the beginning and end of the matter. There is health and safety, and other areas, as well as the CRB. Too often, individuals did not wish or saw no reason to use or trust their individual judgment. My fear is that the more we push the process forward, the less people will feel that they need to use their judgment and intervene, because they feel that it is someone else’s responsibility.

Strangely, in the briefing we received from Fair Play for Children, some of that attitude reveals itself. It states:

“We also point out the possibility that the person, in applying for another post within the organisation, might find himself subject to scrutiny against the barred list, and barring revealed. That places employers at that stage in an invidious position of having had such a person working for them with children and then having to comply with statute to refuse the new job”.

I cannot for the life of me see what is “invidious” about this. It is about a proper, disciplined and clearly run business. If a person changes his job and has different responsibilities involving further exposure and involvement with children, at that point the employer is entitled to say, “I am afraid this is not something which you can become involved with because of the role you are now undertaking”. When I read that the,

“day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned”,

I believe that the Government have got the balance about right.

On the bandwagon effect, subsection (4) of the new clause proposed under Amendment 5 in the name of the noble Lord, Lord Bichard, states:

“Guidance produced for the purposes of subsection (3) … shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice”.

The noble Lord may think that he will cut down the number of criminal records checked but, faced with the matter of best practice, individuals running charities, voluntary groups and sports clubs will face ever greater pressure to obtain an enhanced criminal record certificate. It will be argued that this is needed to be on the safe side. Charities have groups of people which depend on CRB checks, so they are not going to say it is not needed; rather they will say that, for access, it is best practice.

We saw lots of examples in the evidence given to us before we completed our report, Unshackling Good Neighbours. It is tragic to see how many people, rightly or wrongly, are put off from volunteering because they do not want to be CRB-checked. In many cases they did not need to be CRB-checked, but the authorities thought they should be in order to be on the safe side. The University of Oxford has advertised for students to help invigilate in its museums. The job requires sitting in a room or corridor and watching the exhibits so that visitors cannot remove or destroy them. But they now have to be CRB-checked. It is hard to see how the job falls within the requirements of a CRB check but, to be on the safe side, that is what the university wants to do.

Last, I turn to the atomisation effect. Social scientists say that our society is becoming atomised, as they call it, and social media mean that we live increasingly isolated lives. The noble Lord, Lord Bichard, in an interesting article in the House Magazine this week, talks about how social media provide the opportunity for grooming, and I agree with him absolutely on that. I said in my speech at Second Reading that this is one of the most difficult areas we have to tackle going forward. However, if we are not careful, we will enhance the selfish gene which lies within all of us. People say that they see no reason to help their town, village, street or community. To reverse this trend and encourage people to reconnect and get involved, we need to welcome them, not treat them as criminals.

It is a fact, thank goodness, that a fractional minority of people seeks to prey on children. The overwhelmingly vast majority of our fellow citizens are decent, law-abiding and want to do their best. It is with these people in mind that I urge my noble friend not to accept these amendments.

[Lord Peston]

Is the noble Lord saying that if we accept these amendments, there would be no net increase in the number of children who would be protected?

[Lord Hodgson of Astley Abbotts]

I cannot prove a negative, and that is one of the difficulties of arguing either for or against any form of regulation. You cannot prove what will happen. I suspect that there will be no net increase in the risk to children. I suspect that but I cannot prove it, just as the noble Lord cannot prove the contrary.

[Lord Addington]

My Lords, I rise to speak very briefly. Would my noble friends on the Front Bench explain one point? I dealt with a series of amendments that were quite well received by the government Front Bench—“better than half a loaf” was how I described it. Can they explain to the House the process of giving guidance to individual groups so that they know how the process of getting information from the group works and what guidance they will be given as to what they are supposed to do? A little more information about this might help.

I have come to the conclusion that everyone thinks the world they are talking about is totally unique. Sports bodies think that they are totally unique, as do schools. We now ask representatives from sports governing bodies to go into schools, which is an extension of good practice because when people get involved in a club early, that produces the best coaching, the most enthusiasm and the lowest drop-out rates in a sport. It is good for public health and everything else. Putting representatives of sports governing bodies into schools makes, I hope, for a better and more rounded system. Indeed, we tried something similar under the previous Government. There must be an interchange between these two groups.

I hope that my noble friend will tell me that we are talking to all these groups so that they know what they are doing and are having an effective interchange. If we do that, many of the concerns being expressed here will start to become, shall we say, more realistic. Moreover, there is no perfect system, and that is something we have to take into account. I call upon my noble friend to give us a little more insight into the process that the Government want to initiate because there is a great deal of chasing of shadows and fears being expressed in this area. Some of those fears are real and some are not, while some of them are potential fears. We cannot deal with them all, and we never have been able to. It does not matter how many checks you have if you have not caught that one person yet. Can my noble friend give us an idea about the ongoing structure that will be needed for this, because surely that is going to be the best way forward? We are all on the side of the angels, so let us not fight over which angels.

17:30

[Lord Rosser]

My Lords, under the Bill, it will be possible for people who have not been subject to the barring arrangements to work regularly with children or be in regular contact with children. Such a situation could arise if individuals concerned were being supervised by someone else. Employers in this situation will not be prohibited from requesting CRB checks on individuals who apply for “unregulated posts”, but they will not be legally required to do so after the Bill is passed. However, crucially, employers will no longer be able to see the “barred status” of an individual for posts which fall outside regulated activity.

It will be not be possible to ascertain whether the Independent Safeguarding Authority has ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information in the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the Independent Safeguarding Authority may have come to despite the fact that one would expect it to have some expertise in this area.

The Independent Safeguarding Authority collates and assesses information from a wide range of sources in order to come to a decision on whether an individual should be barred from working in regulated activity. Enhanced CRB checks, on the other hand, disclose only information held by the police and do not take into account the wider pool of evidence. Yet, as has already been said in the debate, roughly 20 per cent of the people on the barred list have never been in contact with the police and the evidence that has led to their being barred has come directly from employers and other sources. Surely, the objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person, either as an employee or a paid volunteer in work with vulnerable people, should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made.

It has already been said that serious and potentially serious sexual offenders are all too often very good at covering their tracks and their activities. The Government have maintained that adults who have been “barred” by the Independent Safeguarding Authority from regulated work with children should be allowed to work under “supervision” with children. They have, unfortunately, not yet listened to children’s charities, voluntary organisations, schools and parents who tell them that however close the supervision it cannot prevent bonds of trust being formed between adult and child that could be exploited outside the supervised context and environment.

It is all very well wanting to reduce regulation on those who work regularly with children and have close contact with them, but we need to take care that it does not unnecessarily put at risk someone else’s safety or, in extreme cases, their life. I do not regard that comment as a cheap shot but as a realistic attempt to address the question of balance and proportion in considering this very serious issue.

The Government say that they are committed to giving organisations more responsibility to determine the appropriateness of checks for different roles. Therefore, surely they should not deny organisations which wish to benefit from the expert judgment of the Independent Safeguarding Authority and the full extent of information held by it from doing so if they consider it appropriate. If the Government are determined to remove obligations to check many thousands of individuals, they must at least allow employers and organisations using the services of adults to work regularly and in close contact with children, in whatever settings, to apply independently not only for enhanced CRB checks but also for the “barred status” of individuals and to recommend this as good practice.

We support the amendments, including that to which the noble Lord, Lord Bichard, has put his name. That amendment addresses the issues to which I and many others have referred in this debate and places an additional requirement on the Government to recommend in guidance the routine checking of non-regulated individuals as best practice, which takes us closer to an appropriate position on ensuring the safety of our children.

[Lord Henley]

My Lords, as always, I am grateful to the noble Lords, Lord Bichard and Lord Harris, for introducing their amendments. As always, I am grateful, too, to all those who have spoken in this debate, though at times it felt not like a debate on the amendment but more like a Second Reading debate on the general principles. I should remind the House that we are at Third Reading. I make that point because we have gone way beyond day-to-day supervision, which is the subject of the amendment of the noble Lord, Lord Harris, and way beyond children, which is the matter of the substantive amendment. We have got on to such things as vulnerable adults, which is another matter and not relevant to what we are discussing today. I want to discuss the particular amendments, of which there only two, Amendments 4 and 5, and respond to them in due course.

I start with the simpler amendment, from the noble Lord, Lord Harris, because I think that he received very little support for it other than from his Front Bench—I am not even sure that he supported his own amendment, because he pointed out the inadequacies of it. The amendment would require anyone in a school supervising a volunteer who looks after children to monitor communication between that volunteer and the children. It specifies types of communication they must monitor, including sign language. As I think the noble Lord accepts, it is too prescriptive. We have more faith in the common sense and good judgment of managers in schools than seems to be implied by the amendment.

No doubt the noble Lord will make up his own mind about what to do with the amendment. He has had very powerful support from his noble friend Lord Rosser, but I am not sure that he has had it from others. Therefore, at this stage, the important thing to do would be to move on and deal with the substantive amendment in this group of two, which is that in the name of the noble Lord, Lord Bichard. If the House wanted to come to a conclusion on these two amendments, I would hope that it would come to a conclusion on that in the name of the noble Lord, Lord Bichard, and not that in the name of the noble Lord, Lord Harris. I make that purely as an introductory point.

The noble Lord, Lord Bichard, seeks four things; first, that enhanced criminal record certificates be available where someone is working regularly and closely with children; secondly, that the Government issue guidance on what “regular and close” means; thirdly, that the guidance will recommend it as best practice to obtain an enhanced certificate; and, fourthly, that those certificates contain information about a person’s barred status, which could also be obtained by a direct barred-list check. I shall deal with those four points in that order. I hope that the House will listen to me carefully and remember that it is with those four things that we are dealing and not wider aspects in relation to the CRB and so on.

On that first point, I am happy to confirm that all those people who work regularly and closely with children will remain eligible for enhanced criminal record certificates. People who remain within regulated activity will be eligible for them for that reason alone. People no longer within regulated activity will remain eligible for them, as I have confirmed before and can do so again. In view of those assurances, I hope that the noble Lord will agree that it is not necessary to place that provision in the Bill.

On the second issue, that the Government should produce guidance on what regular and close contact means, we are already meeting the substance of this proposal. Clause 77 already commits the Government to publishing statutory guidance on the meaning of day-to-day supervision. We must be careful to avoid introducing two sets of statutory guidance about similar subjects, which would create confusion and lead to unnecessary additional burdens on businesses and voluntary organisations. Therefore, while we cannot meet the form of the noble Lord’s proposal in this area, I believe that we are already meeting the substance.

Thirdly, the amendment states that the Government should recommend that obtaining enhanced criminal record certificates is best practice for those who work closely and regularly with children. Again, here I can offer some reassurance to the noble Lord and others who have spoken. I can confirm that the statutory guidance on supervision, which we are already committed to introducing, will recommend that it is good practice to obtain an enhanced criminal record certificate when employees or volunteers are new or unknown to the organisation or if checks are needed for new posts or staff moves. Where existing employees are concerned, I hope that the House would agree that it is properly a matter for employers and voluntary organisations to judge whether periodic checks are helpful or whether to use the new updating service which helps make these criminal records more portable.

The final proposal of the noble Lord, Lord Bichard, is that employers should be able to discover whether those of their employees who work, or will be working, regularly and closely with children are barred from working with children, either via an enhanced criminal record certificate or via a direct barred-list check. Barring information will be available in relation to posts within regulated activity and a few compelling exceptions such as those applying to foster or adopt a child, but the Government cannot agree to release barring information in other circumstances.

At this juncture, it might be worth going back to the review of the vetting and barring scheme which we published a little over a year ago. The context of the review was to achieve a better balance between public protection and civil liberties: to achieve a system which is, to use a word which Ministers have much deployed during debates on the Bill in this place and another place, proportionate. The protection of vulnerable groups, including children, is paramount. That is why the review concluded that a central barring scheme should be maintained.

However, there are other important principles which need to be balanced with this, not least the civil liberties of individuals, and that is why these measures are included within the Bill. Those viewpoints have received somewhat less airing—I am grateful that some have—in this House but they are very real and widespread. It is not proportionate for barred people to have their barred status communicated to employers when it is not relevant. It is relevant in the case of a post falling within regulated activity because the person is prohibited from working in that role and the prospective employer must know that. Otherwise, it is not proportionate to pass on that information because bars relate only to regulated activity. Passing on barring information would tell employers that a person is barred from another area of work. However, despite that, many employers will not engage someone if they see the word “barred” even if the bar is not relevant to that role. To introduce this change would be greatly to expand the number of people subject to barred-list checks and it would undermine our efforts to reduce the scope of regulated activity and to make the barring arrangements more proportionate.

However, I can offer the noble Lord some reassurance in this area. While we do not think it right to communicate that someone is barred in these cases, it can be useful to pass on the information which led to the bar. This is more valuable information for an employer. In most cases this will be visible on an enhanced certificate anyway, not just in the four-fifths of bars which follow automatically from a criminal conviction or caution but in many of the one-fifth of bars which derive from other information. As I have said before, we will encourage regulated activity providers to report information to the police where appropriate, as well as to the Independent Safeguarding Authority.

I can offer one further measure. Section 50A of the Safeguarding Vulnerable Groups Act allows the Independent Safeguarding Authority to provide any information to the police, which could include the information which led to a bar. While the existing purposes for which this information can be passed to the police do not include the purposes of disclosing information on an enhanced criminal record certificate, Clause 77(3) of the Bill allows the Secretary of State to prescribe new purposes. I can confirm that we will include a new purpose for providing information for disclosure on enhanced criminal record certificates. We will introduce this alongside the new definition of regulated activity. This will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate. This is a better solution than telling an employer that someone is not barred. Indeed, providing the information that led to a bar will be of far more benefit to a prospective employer than simply providing the word “barred”, allowing the employer to make an informed choice.

The noble Lord, Lord Bichard, said on Report:

“I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever setting, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice”.—[Official Report, 15/2/12; col. 798.]

I have made it clear to the House that we are committed to delivering on both these points. Indeed, I hope noble Lords will agree that I have gone further in undertaking to provide for the police to include the reasons for a barring decision on an enhanced certificate where such information is relevant to the post in question, but only where it is. On that basis, I hope the noble Lord, Lord Bichard, will agree that I have satisfied the points that he raised on Report and will agree not to move his amendment.

17:45

[Lord Bichard]

I am seeking clarification in order to be helpful. Am I hearing from the Minister that in future the barring authorities will make available to the police the information on which they have made their decision, but not necessarily the decision, and the police can then decide whether that is relevant information to make available to employers who carry out a criminal record check? To be clear, is that what is now being said?

[Lord Henley]

That is what I want to make clear, but as long as the information is relevant. We do not want irrelevant information passed on because of the damage that could possibly cause to the individual concerned.

[Lord Bichard]

This dialogue cannot and will not go on for ever but, of course, under the current arrangements, the police make a decision about whether the information they have on convictions is relevant. Therefore the Minister is suggesting that they would make the same decision about information they receive from the barring authorities about individuals. Is that correct?

[Lord Henley]

My Lords, I will again remind the noble Lord and the House that we are at Third Reading. I shall repeat the words I used. If the police judge it relevant to the post applied for they may disclose it on an enhanced certificate—no more and no less.

[Lord Harris of Haringey]

I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.

The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.

Because of the developing thinking that has taken place in your Lordships’ House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,

“regular and close contact with children”.

Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.

The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.

It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships—I accept not all—believe that there is a more sensible way.

The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance—my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision—I beg leave to withdraw my amendment.

Amendment 4 withdrawn.

Amendment 5

Tabled by

[Lord Bichard]

5: After Clause 64, insert the following new Clause—
“Voluntary application for relevant information: children
(1) The Secretary of State shall by regulation ensure that any person who permits, or is considering whether to permit, an individual to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, may be permitted to obtain a relevant enhanced criminal record certificate.
(2) In this section “relevant enhanced criminal record certificate” means an enhanced criminal record certificate issued under section 113BA of the Police Act 1997, which includes by virtue of that section, suitability information relating to children.
(3) The Secretary of State shall produce guidance on the interpretation of the terms “regular and close contact with children” under subsection (1) of this section.
(4) Guidance produced for the purposes of subsection (3) of this section shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice.
(5) In table 1 of Schedule 7 to the Safeguarding Vulnerable Groups Act 2006, at end insert—

“20. Person who permits, or is considering whether to permit, B to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, but does not fall within Part 1 of Schedule 4.

Children””

[Lord Bichard]

I thank the Minister not just for the discussion today but for discussions before today with other Members as well as myself. I thank, too, all those who have participated in this debate, which has on occasions lapsed into criticising the existing arrangements. I agree with those who say that we have too many checks too often and that they deter people from volunteering. There is no question about that, which is why the Government have put forward those proposals. My amendment accepts the Government’s fundamental position and, let us be clear, does not produce more bureaucracy or ticking of boxes. It concerns only those adults working regularly and closely with children, not those who just happen to have some contact with children on an irregular basis.

At the end of the day, what matters is that employers who will now make the decision have the information that we have to enable them to make the best possible decision. As someone said, that will not guarantee that children will not continue to be abused, because you cannot guarantee that; but it is very difficult for us to justify a situation in which information is available but not made available to those who will make the decision.

The question therefore comes down to whether or not the undertakings given today are sufficient to enable me not to press the amendment to a Division. I am conscious that in this House a lot of people feel very passionately about this issue and are very concerned about this vote. I agree with the noble Lord, Lord Harris, that the proposal made in the Bill is convoluted; it is not one that I would have thought was the obvious way forward. On the other hand, it ensures that the information that society has available about an individual is available to the person who makes the decision if the police make their own decision that it is relevant. It is difficult for me to pursue the amendment purely because we are not giving information that an individual has been barred or not barred from regulated activity. On the basis that the information that led to the barring or not barring is available to the police, who can then make a decision about whether it should be made available to the employer, I shall not press my amendment.

Amendment 5 not moved.

Amendment 6

Moved by

[Lord Henley]

6: After Clause 110, insert the following new Clause—
“StalkingOffences in relation to stalking
(1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert—
“2A Offence of stalking
(1) A person is guilty of an offence if—
(a) the person pursues a course of conduct in breach of section 1(1), and(b) the course of conduct amounts to stalking.(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person’s course of conduct amounts to stalking of another person if—
(a) it amounts to harassment of that person,(b) the acts or omissions involved are ones associated with stalking, and(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—
(a) following a person,(b) contacting, or attempting to contact, a person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to a person, or(ii) purporting to originate from a person,(d) monitoring the use by a person of the internet, email or any other form of electronic communication,(e) loitering in any place (whether public or private),(f) interfering with any property in the possession of a person,(g) watching or spying on a person.(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both.
(5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months.
(6) This section is without prejudice to the generality of section 2.”
(2) After section 4 of that Act (putting people in fear of violence) insert—
“4A Stalking involving fear of violence
(1) A person (“A”) whose course of conduct—
(a) amounts to stalking, and(b) causes another (“B”) to fear, on at least two occasions, that violence will be used against B,is guilty of an offence if A knows or ought to know that A’s course of conduct will cause B so to fear on each of those occasions. (2) For the purposes of this section A ought to know that A’s course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.
(3) It is a defence for A to show that—
(a) A’s course of conduct was pursued for the purpose of preventing or detecting crime,(b) A’s course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) the pursuit of A’s course of conduct was reasonable for the protection of A or another or for the protection of A’s or another’s property.(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding the statutory maximum, or both.(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(b) to twelve months is to be read as a reference to six months.
(6) If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.
(7) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (6) convicted before it of an offence under section 2 or 2A as a magistrates’ court would have on convicting the person of the offence.
(8) This section is without prejudice to the generality of section 4.””

Amendment 7 (to Amendment 6)

Tabled by

[Baroness Royall of Blaisdon]

7: After Clause 110, line 21, at end insert “inter alia”

[Baroness Royall of Blaisdon]

I shall not move this or the other related amendments, because I am confident that the Minister will ensure that the discussions between the Bill team, Napo and other experts in the coming week will encompass issues wider than those relating to the wording of the new offence under new Section 4A, because I know that the Minister, like his right honourable friend the Prime Minister, will want to ensure that all the commitments that they have made in the last weeks can be adhered to.

Amendment 7 (to Amendment 6) not moved.

Amendments 8 to 12 (to Amendment 6) not moved.

Amendment 6 agreed.

Amendment 13

Moved by

[Lord Henley]

13: Schedule 1, page 125, line 5, at end insert—
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”

Amendment 14 (to Amendment 13) not moved.

Amendment 13 agreed.

Clause 117 : Extent

Amendment 15

Moved by

[Baroness Stowell of Beeston]

15: Clause 117, page 103, line 18, at end insert—
“( ) section 53 and Schedule 3,”

[Baroness Stowell of Beeston]

In moving Amendment 15, I shall also speak to Amendments 17, 26, 27, 28, 30 and 31. However, I shall not detain your Lordships as these are technical amendments, so unless a noble Lord wishes to raise a point, to which of course I shall be willing to respond, I beg to move.

Amendment 15 agreed.

Amendments 16 to 18

Moved by

[Baroness Stowell of Beeston]

16: Clause 117, page 103, line 25, leave out “(8)(l)” and insert “(8)(ja) and (l)”

17: Clause 117, page 104, line 32, leave out “Schedule 2” and insert “section 53 and Schedules 2 and 3”

18: Clause 117, page 104, line 40, at end insert—
“(ja) the amendments of Schedule 1 to the Criminal Justice and Police Act 2001, and Schedule 5 to the Sexual Offences Act 2003, in Part 10A of Schedule 9,”

Amendments 16 to 18 agreed.

Clause 118 : Commencement

Amendment 19

Moved by

[Baroness O'Neill of Bengarve]

19: Clause 118, page 105, line 4, at end insert—
“( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until—
(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect; (c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice.”

[Baroness O'Neill of Bengarve]

My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.

I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister’s indication at Report that the delay would be used.

So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others’ IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.

18:00

I ask the Minister for assurances that the code of practice that will be revised will address the range of problems discussed, and take account of the results of post-legislative scrutiny, the Government’s response to that scrutiny and other relevant evidence. In particular, the process needs to take account of some questions that have been raised repeatedly. The first is that of timing, a point raised successively in Committee and at Report by the noble Baroness, Lady Brinton. Will the code clarify the point at which data sets that are either incomplete or have not been checked must be released? This matters for individual researchers and research teams.

Secondly, on costs, I am grateful to the Minister for his clarity at Report about the costs of locating data. He said:

“The Freedom of Information Act, passed by the previous Government, provides that where it would cost more than a certain amount to locate information that has been requested, there is no obligation to provide it”.—[Official Report, 15/2/12; col. 837.]

Will the code of practice to be introduced before implementing this extension of the 2000 Act provide comparable clarity about dealing with certain other costs? How will the IT costs of rendering data reusable—for example, if non-standard software has been used or if data sets are massively large—affect obligations to provide data, and how will the redaction costs of removing personal identifiers from data sets work? In each case, costs can run to very large sums. Will researchers be able to refuse to release data if these costs exceed a set threshold? I believe the matter has remained unclear, both in Committee and at Report.

Thirdly, there is the question of licences for reuse. The Minister said at Report that,

“the Bill provides that public authorities, when making their data sets available for reuse, must use one of the specified licences which will be set out in the code of practice in due course … Published licence terms will provide clarity, certainty and consistency as to how information and data can be reused”.—[Official Report, 15/2/12; cols. 835-36.]

It is hardly surprising that a requirement to use licences yet to be specified has raised fears among UK researchers and among the institutions in which they work, not to mention in those companies that might otherwise wish to fund research in UK universities. What steps will the Minister take to ensure that these licensing requirements do not damage UK research? Is the office of the Information Commissioner equipped to judge specifications in licences that are likely not to be respected in certain jurisdictions? Can the office judge the reliability with which the conditions in the licences are likely to be respected?

I would not want these arguments to be misinterpreted as opposition to data sharing, but there are many models for that in addition to the freedom of information model. Some are already in regular use in a range of scientific communities. Examples include: the conditional, regulated access to data used by the genomics community; the use of so-called data safe havens, for example by the Scottish Health Informatics Programme; and the use of a trustee model for data access, as for example by the UK Biobank. Freedom of information is a model of information sharing that is at one extreme end of a spectrum, since it requires publication to the entire world. That is why it threatens the capacity of institutions to commercialise their research. In the long march from work that first assembles data to the point at which it becomes feasible to file for a patent, others will be entitled to obtain researchers’ data and may file prior patents—or patents that prevent researchers from filing for those patents they would otherwise seek.

If we do not see a convincing code before implementation, we shall be committed to policies that will undermine two government initiatives for which I have great respect. The first and more general of these initiatives—which was introduced by the previous Government—is that universities and other publicly funded research institutes are now required and incentivised to commercialise their research. Yet here we see provisions to regulate them in ways from which their commercial competitors will be exempt. The second is the Government’s Strategy for UK Life Sciences, published on 5 December last year, which is predicated on quite a different approach to data sharing. The right honourable David Willetts, writing in the spring 2012 issue of Science in Parliament spoke of,

“launching a new secure service to link primary and secondary care data at an unidentifiable … level”—

in effect, a safe-haven approach. It may be thought that this is quite another matter because we are talking about patient data rather than scientific data, but the life sciences strategy is about using patient data for research, and biomedical research draws not only on patient data but on a range of wider socioeconomic and biological and demographic data.

If we want the life sciences strategy—an admirable strategy—to succeed and to benefit the UK biotech industries, we shall need a code that incorporates robust responses to the results of post-legislative scrutiny of the Freedom of Information Act, which may require further legislation. We shall also need a code that achieves a high degree of clarity about the conditions under which research data must be disclosed to the entire world, and the conditions under which they may not be disclosed. Amendment 19 seeks to set out steps by which these objectives might be achieved. I beg to move.

[Lord Oxburgh]

My Lords, I have added my name to this amendment. I think it is widely accepted that when the freedom of information legislation was originally conceived, little or no thought was given to the effect that it might have on universities. In the event, this is of less importance today because since that time there have been major changes in the role of universities, but it means that the new legislation should reflect those changes—and frankly, this has not happened. The purpose of this amendment is to ensure that the outcomes of post-legislative scrutiny are taken fully into account before the relevant parts of the Bill come into force. Unless they are, there is a risk of serious damage to our university system. It is damage that will not make tabloid headlines. It will be slow and incremental, but it will be certain.

Under current legislation, universities are regarded as “publicly owned companies” and carry the concomitant Freedom of Information Act disclosure obligations. This is in spite of the fact that they now receive more of their income from private sources than from the Government—a greater proportion, in some cases, than private companies. This comparison is relevant because, following the policies of successive Governments, universities are now expected to behave as private bodies, collaborating and/or competing with private industry in commercialising their research. They are also in competition for students with each other, with overseas universities and with private universities. Under the legislation as it stands, they cannot do any of this on equal terms because details of their plans, costings and research activities may have to be disclosed.

On the matter of university/industry collaboration, the present disclosure arrangements, to which my noble friend Lady O’Neill has referred, are deeply unattractive to business because of the belief, right or wrong, that the confidentiality of collaborative work may depend on discretionary exemptions that can be challenged. Such collaborations are difficult enough to set up in the first place, and uncertainty over the implications of FOI can cause the company simply to walk away.

One of the first questions that have to be addressed by scrutiny is whether the current definition of a publicly owned company is satisfactory. Another is whether there is a presumption in favour of disclosure of all the information held by such a body, or whether there is a class of competition-relevant information for which the presumption might be non-disclosure. This problem is not addressed by the current system of exemptions. It may be worth pointing out, and this relates to the cost question raised by my noble friend, that there is a recent example of a university incurring massive legal fees of over £250,000 in a case in which it believed that the release of data requested would put its staff at risk from animal rights activists.

Another serious question is whether there should there be any qualification of the right of access to public body information. At present, anyone anywhere in the world can exercise that right. Should the right be restricted to UK citizens and bodies? To offer an example, a British university was conducting a study for Cancer Research UK into the factors that influenced the behaviour of young people smoking tobacco. An FOI request for the data was received from a foreign tobacco company. It is clear that the funders of the research would not have wished the data to be released to the company and, to pick up an earlier point, might well not have funded the work at the university had they regarded this as a possibility.

A final area that requires attention and clarification is the conflict that can arise between the requirements of FOI legislation and obligations under other laws. There are examples of conflicts with the Data Protection Act, the Animals (Scientific Procedures) Act and environmental information regulations. The purpose of our amendment is therefore to ensure that full weight is given to the outcome of the scrutiny and that Parliament has the opportunity to confirm that it is satisfied with the Government’s response.

Some of the points that I have made have already been made and submitted in evidence to the scrutiny group by Universities UK and the Russell Group in their submissions to the scrutiny process. I strongly support all the points made by my noble friend in her speech.

[Lord Sutherland of Houndwood]

My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.

[The Earl of Erroll]

My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.

[Baroness Brinton]

My Lords, I want to add to the comments about the complexities of the data sets, which the noble Baroness, Lady O’Neill, outlined earlier. I am grateful for the Minister’s comments about addressing this after post-legislative scrutiny. Does he have any idea when that is likely to conclude and therefore when there might be a review? I thank the noble Lord, Lord McNally, for his agreement to meet me and my noble friend Lady Hamwee outside the legislative process to see whether we can get some clarity on the whole vexed issue of exemptions with the advice to higher education institutions of the Information Commissioner.

18:15

[Lord Henley]

My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O’Neill, and others over the preceding months. We want to address those points.

We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.

The amendment—it is always important at Third Reading to discuss the amendment, not wider issues—seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.

I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill—for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.

We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.

I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.

On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.

However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.

However, I can reassure the noble Baroness, Lady O’Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee’s recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.

As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.

[Baroness O'Neill of Bengarve]

My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith’s committee but that require primary legislation. For that reason, I shall withdraw the amendment.

However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Schedule 1 : Amendments of regimes other than PACE

Amendment 20

Moved by

[Lord Henley]

20: Schedule 1, page 117, line 18, after “held” insert “for the purposes of national security”

[Lord Henley]

My Lords, in moving Amendment 20, I will speak also to Amendments 21 to 25. On Report, I gave notice to the House that the Government were considering whether it would be helpful to clarify further the scope of the regime for retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008, as substituted by Part 3 of Schedule 1 to the Bill. We have concluded that new Section 18 of the 2008 Act, as currently drafted, is too broad and requires further clarification so that the intended scope of the provisions properly provides that crime scene material is excluded from any destruction regime.

To this end, Amendment 20 provides that new Section 18 applies only to biometric material that is held by a law enforcement authority under the law of England, Wales or Northern Ireland that is not subject to existing statutory restrictions and is held for the purposes of national security. Amendments 21 to 23 and Amendment 25 provide that material taken under a number of other statutory regimes is subject not to the destruction regime in the Counter-Terrorism Act but to the rules in those enactments. Amendment 24 corrects a minor drafting error regarding the relevant section of the Intelligence Services Act 1994 to be included in the list of existing statutory restrictions. I beg to move.

Amendment 20 agreed.

Amendments 21 to 25

Moved by

[Lord Henley]

21: Schedule 1, page 118, line 10, at end insert—
“( ) paragraph 18(2) of Schedule 2 to the Immigration Act 1971;”

22: Schedule 1, page 118, line 12, at end insert “and any corresponding provision in an order under section 113 of that Act”

23: Schedule 1, page 118, line 15, leave out from beginning to end of line 16

24: Schedule 1, page 118, line 18, leave out “1(2)” and insert “2(2)”

25: Schedule 1, page 118, line 18, at end insert—
“( ) paragraphs 20(3) and 20A to 20J of Schedule 8 to the Terrorism Act 2000;( ) section 56 of the Criminal Justice and Police Act 2001;( ) paragraph 8 of Schedule 4 to the International Criminal Court Act 2001; ( ) sections 73, 83, 87, 88 and 89 of the Armed Forces Act 2006 and any provision relating to the retention of material in an order made under section 74, 93 or 323 of that Act;”

Amendments 21 to 25 agreed.

Schedule 8 : Disclosure and Barring Service

Amendments 26 and 27

Moved by

[Lord Henley]

26: Schedule 8, page 171, line 21, at end insert—
“( ) is a person in relation to whom a moratorium period, under a debt relief order made under Part 7A of the Insolvency Act 1986 or Part 7A of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)), applies,”

27: Schedule 8, page 171, line 25, at end insert—
“( ) is the subject of a debt relief restrictions order or an interim debt relief restrictions order under Schedule 4ZB to the Insolvency Act 1986 or Schedule 2ZB to the Insolvency (Northern Ireland) Order 1989,”

Amendments 26 and 27 agreed.

Schedule 9 : Consequential amendments

Amendments 28 and 29

Moved by

[Lord Henley]

28: Schedule 9, page 184, line 10, at end insert—
“41A (1) Section 120A (refusal and cancellation of registration on grounds related to disclosure) is amended as follows.
(2) In subsection (3A) omit paragraphs (b) and (c).
(3) Omit subsections (3B) and (3C).
(4) In subsection (3D)—
(a) for “subsections (3A) to (3C)” substitute “subsection (3A)”,(b) for “those subsections” substitute “that subsection”, and(c) omit the words from “, except” to the end of the subsection.”

29: Schedule 9, page 196, line 28, at end insert—
“Part 10AStalkingProtection from Harassment Act 1997141A (1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 1(2) (circumstances in which a person ought to know that a course of conduct amounts to harassment) after “this section” insert “or section 2A(2)(c)”.
(3) In section 4 (putting people in fear of violence)—
(a) in subsection (5) after “section 2” insert “or 2A”, and(b) in subsection (6) after “section 2” insert “or 2A”.Crime and Disorder Act 1998141B (1) Section 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc.) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a)—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and (b) in paragraph (b)—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.(3) In subsection (5) for “the basic offence” substitute “either basic offence”.
Criminal Justice and Police Act 2001141C In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (powers of seizure to which section 50 of that Act applies), after paragraph 63, insert—
“Protection from Harassment Act 199763A The power of seizure conferred by section 2B(2) of the Protection from Harassment Act 1997 (seizure of material relevant to stalking).”
Sexual Offences Act 2003141D In Schedule 5 to the Sexual Offences Act 2003 (relevant offences for the purposes of notification and orders)—
(a) in paragraph 56A—(i) after “section 2” insert “or 2A”, and(ii) for “offence of harassment” substitute “offences of harassment and stalking”, and(b) in paragraph 57—(i) after “section 4” insert “or 4A”, and(ii) after “violence” insert “by stalking or otherwise”.Criminal Justice Act 2003141E In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (sentencing of dangerous offenders: specified violent offences), in paragraph 57—
(a) after “section 4” insert “or 4A”, and(b) after “violence” insert “by stalking or otherwise”.”

Amendments 28 and 29 agreed.

Schedule 10 : Repeals and revocations

Amendments 30 and 31

Moved by

[Lord Henley]

30: Schedule 10, page 198, line 40, at end insert—
“( ) the Milk (Cessation of Production) Act 1985,”

31: Schedule 10, page 201, line 14, at end insert—

“In section 120A— (a) subsection (3A)(b) and (c), (b) subsections (3B) and (3C), and (c) in subsection (3D), the words from “, except” to the end of the subsection.”

Amendments 30 and 31 agreed.

In the Title

Amendment 32

Moved by

[Lord Henley]

32: In the Title, line 11, after first “and” insert “about stalking;”

Amendment 32 agreed.

Motion

Moved by

[Lord Henley]

That the Bill do now pass.

[Baroness Stowell of Beeston]

My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.

[Lord Ponsonby of Shulbrede]

My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister’s office that I intended to do this.

It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates’ court. This is too restrictive; all that is necessary is for the application to be made to a magistrates’ court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.

The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates’ courts in England and Wales that lay benches have exactly the same powers as district judges.

The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.

I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.

[Baroness Hamwee]

My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.

[Lord Henley]

My Lords, I will respond briefly in light of the remarks of my noble friend. The noble Lord, Lord Ponsonby, gave me notice of this issue and raised the question of which judicial body is appropriate to hear applications, under Clause 3, to extend the retention of DNA for those charged with a serious offence but not convicted.

As the House will be aware, this procedure is modelled closely on the system that has been in place in Scotland since 2006. In Scotland, these applications are heard by sheriffs, who, as the noble Lord will be aware, are full-time judicial officeholders, rather than by justices of the peace. In adopting the protections of the Scottish model, we have merely sought to replicate the position in Scotland. I would like to take this opportunity to reassure the noble Lord and other noble Lords—I think that the noble Lord is a lay magistrate—that this is not intended in any way to diminish the valuable work which lay magistrates do every day in dealing with the vast majority of cases before magistrates’ courts across England and Wales. However, as we have discussed previously, we expect these applications to be comparatively rare and we judge that, as in Scotland, it makes sense to put them before a professional judge rather than the lay magistracy.

Bill passed and returned to the Commons with amendments.

Legal Aid, Sentencing and Punishment of Offenders Bill

Monday 12th March 2012 Lords Chamber

Report (3rd Day)

Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights

18:30

Schedule 1 : Civil legal services

Amendment 74

Moved by

[Lord Bach]

74: Schedule 1, page 140, line 8, leave out from “Kingdom” to end of line 39

[Lord Bach]

My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.

Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals—for example, by not-for-profit organisations—is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service’s Commissioner’s scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones—their wives and children—are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.

Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson’s name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,

“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.

Lord Justice Stanley Burnton said:

“In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals”.

Therefore, legal aid is necessary to ensure justice in an overly complex system.

The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,

“individuals will generally be able to represent themselves”.

As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:

“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. … Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already”.

I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.

Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.

Anyone who watched the television coverage of Her Majesty the Queen’s visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, “Because this is my country and she is my Queen”. I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.

By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation’s success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure’s current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.

Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government’s position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman’s insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.

This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.

I conclude as follows: with immigration advice and representation regulated—and quite rightly regulated because of the scandal of advisers in the past—I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.

[Lord Pannick]

My Lords, I support the amendment. I am concerned that in the Minister’s letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called “routine” immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.

Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.

I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine—they are not.

[Lord Clinton-Davis]

I will not detain the House for long, but recall only too well the situation posed when I was an MP conducting surgeries on Friday nights. There were many occasions when I had to go to Heathrow to see people who were being deported. They were desperate. They had no alternative. I would not like the situation to be repeated, but I fear that it will be. The Government have to convince this House that desperate people are not to be accommodated at all. That situation is impossible to defend. The proposals being put forward by the Government today are so reckless that they ought to be defeated. It is absurd that ordinary people who are so desperate should have no alternative. That situation should not be encountered at all.

18:45

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters—the Immigration Law Practitioners’ Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies—the Government’s case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.

The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country’s financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country’s difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.

I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that—and this is not the first time in history—a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.

I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council’s comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who—I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said—two or three of whom are senior judges—the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?

We have heard references to how advice workers can help, but we have also heard—and it is the situation—that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.

[Baroness Butler-Sloss]

My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,

“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.

That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.

I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.

What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.

Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.

[Baroness Hamwee]

My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.

I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.

I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.

[Lord Borrie]

My Lords, if the House was today being given a choice between the amendment proposed by my noble friend Lord Bach, to bring within scope the immigration laws and advice that is needed by so many people to get through the impenetrable weight and mass of immigration law, and simplifying and reducing the impenetrability of immigration law, many of us might go for the second.

I remind your Lordships that many branches of administrative law—or what is nowadays called that—were created by the welfare state, post-Beveridge, after the end of World War II. The idea was that there would be a law which need not be dealt with by the courts but could be dealt with by a mix of lay men and lawyers in administrative tribunals. I recall that the TUC used to say: “No more law, no more lawyers”, when dealing with industrial injury and other matters which were to go to tribunals. Of course, we all know that during the past 50 or 60 years the law relating to the welfare state and immigration has increased. It has expanded. Many times during debates on this Bill in the past few weeks, mention has been made of the vast quantity of material contained within the 1,000 pages-plus of the law relating to welfare. Many lawyers know, as many of your Lordships have said this afternoon, that that is the case with immigration law. There is a mass of detail.

If I were given the choice between simplifying that and my noble friend’s amendment, I would probably prefer a scheme to start on the major task of simplification. We do not have that choice today. The choice today is how to deal with the present Bill. Whatever we may do as Parliament in due course, today and tomorrow, in the immediate future, there is a real need for people to have proper advice from authorised persons about the detail of immigration law. That can be done only if we agree to the amendment to enable relevant people to come within scope of legal advice and legal aid.

19:00

[Lord Woolf]

My Lords, rightly, we have heard a lot about victims so far in this debate and, if this amendment is not accepted, we are going to create another victim—the justice system. Government after Government have struggled to find ways of curtailing the ability of those who seek to justify their presence in this country by excluding them through legislation that Parliament has passed in a series of Bills—legislation which has made the law into the state in which it is now and which has already been vividly described.

In those attempts, there is normally strong support in the other place and probably in this House because it is thought that often the legislation has popular appeal. Those who said that the Government were creating a situation which would be difficult, if not impossible, to administer and adjudicate upon were not listened to. So far as I recollect, the only occasion when a Government were forced into reverse was when it was said that the legislation they were proposing sought to prevent access to the courts. The previous Government realised that that accusation, made in various quarters, was justified. To their credit, they realised that, because of the seriousness of the criticism, they had to withdraw, as the legislation would indeed have prevented admission to the courts. Of course, the issue that we are now considering is not quite as dramatic as that but I can tell the House, based on my experience, that the consequence of removing legal aid altogether—I emphasise “altogether” because we are talking about taking it out of scope—could have very serious consequences for the administration of justice.

If you go along to the Strand, where you will find our most senior court apart from the Supreme Court, you will see that much of the time of the Royal Courts of Justice is spent dealing with the problems of immigration law. The Supreme Court, in its short existence, has found that a sizeable proportion of its diet again involves immigration. I urge the House to think about the consequences for the legal system of depriving those who desperately need legal assistance of the ability to get that assistance. Without it, the task of the courts will become even more difficult than it already is, as amply confirmed by the statements from senior courts to which the House has been referred. I urge the Government to think very seriously about this amendment because it is of great importance to the legal system of this country.

[Lord Judd]

My Lords, the noble and learned Lord has reminded us very powerfully of the damage that can be done to our whole system of the administration of justice. Perhaps I may briefly make two wider points arising from that. One is that the Government are always telling us how they seek to play a constructive and powerful part in the deliberations of the international community in finding the solutions that matter for humanity as a whole. I can think of no more calculated way of undermining the respect in which we are held and the influence that we bring to bear than if there seems to be specific, mean action of the kind proposed. I do not want to exaggerate, as it would be quite wrong and irresponsible to do so, but I sometimes get very vexed. We all recognise the importance of joined-up government and we all recognise that we want to build a stable and secure world, but how does it help if there are increasing numbers of embittered and frustrated people having a bad experience at the hands of our legal administration in this country? How does that help to build international security and stability? I say no more.

[Lord Avebury]

My Lords, perhaps I may mention one point which has not been raised so far. I refer to the effect of this provision on the workload of Members of Parliament in another place and of some of your Lordships in this House. Many of us already get letters, e-mails and personal approaches from immigrants asking for advice. Obviously, we are exempt from the provisions that apply to other not-for-profit agencies. Under the rules that determine who is legally able to do so, we cannot say that we are not qualified to give advice, but people will no longer be able to go to, for example, citizens advice bureaux. I know from personal contact with the citizens advice bureau in Southwark that it has one person who is trained to give advice at level 3 on immigration cases and it has very few lower down who are even able to advance advice to their clients on level 1 cases.

Do your Lordships not think that the consequence of the Bill, when enacted, will be that, as people will not be able to get advice elsewhere, they will come in their droves to the doors of Members of Parliament, they will clog up the advice bureaux and they will turn to your Lordships? We will be completely overwhelmed by the volume of cases, as well as being unable to deal with the complex cases to which the noble Lord, Lord Bach, referred in his introduction. We all know that some immigration cases are simple and can be dealt with very easily by a person acting on his own behalf, but that does not apply to the vast majority of cases, as we have heard today. I think that there is enormous merit in the amendment proposed by the noble Lord, Lord Bach, and I certainly hope that my noble and learned friend on the Front Bench will have been thinking carefully about how he is going to reply at the end of this debate.

[Lord Boswell of Aynho]

My Lords, I have listened with interest to this debate as a lay person who has not been much engaged on the Bill in the past. However, like my noble friend Lord Avebury, I had constituency experience and was always impressed by the complexity of the cases brought to me. I am also impressed by the volume of evidence and comment made, not least because I currently happen to be one of the officers of the All-Party Parliamentary Group on Migration. I am not in any sense taking its brief but I feel that this matter needs very careful and continuing consideration.

I well understand that there have been cases of abuse in the past. These may have involved overt or self-styled professionals, and they may have involved bad practices by others, including third parties, who run the immigration cases. I also well understand the point about the cost that the Minister has already made to us in correspondence. I would go beyond that to comment that we really cannot meet all the objectives which his department needs to meet in order to balance its budget if we make wholesale concessions on every single aspect of concern where pressure is developed.

These are complex cases. My difficulty in saying that we need to keep them within scope is—thinking aloud—in determining how one would find a basis for doing so without, as it were, pre-hearing the merits of the cases and without necessarily being able to predetermine the degree of legal complexity in those cases unless and until they had been examined. I know that those are difficulties and I know that the cost is a difficulty, but I say to my noble and learned friend that I do not spend my life rebelling and I do not intend to do so tonight for some of the general reasons that I have given about the need for rigour as we take this Bill through. However, I think that these cases are particularly difficult. If he takes them out of scope now, I think that he will need to keep the whole area under review. In future, he may need to consider at least some residual discretionary fund which can be applied to cases of particular interest or importance or where justice is most engaged. It is on that qualified basis, but in anticipation also of his response, that I may be prepared to tender my vote in his Lobby tonight.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the amendment moved by the noble Lord, Lord Bach, as indicated by many contributors to this debate, would bring legal aid within scope for all immigration cases. I readily understand why noble Lords have put forward the amendment and I am sure the noble Lord will accept, as I think he indicated in his remarks, that just because we seek to take many immigration cases out of scope does not mean that we do not value the contributions that immigrants have made. I think the noble Lord, Lord Bach, acknowledges that we certainly do.

To make a change to the Bill in a way proposed by this amendment causes us to look at the rationale and the basic structure of what underlines this legislation at a time of limited resources. As my noble friend Lord Boswell has just said, this is a time when difficult decisions have had to be taken and when there has been a need to focus legal aid on those who need it most in the most serious cases. My noble friend said that he hoped we would consider it. It can be taken as read that, in an area as sensitive as this, for the reasons that have been advanced by many of your Lordships in contributions to this debate, this is obviously a matter which has been given serious consideration. I am confident that all who took part in the debate will appreciate that this is not a blanket exclusion of immigration cases. We have made it clear in the immigration sphere that we are retaining legal aid for asylum cases, which we believe is absolutely essential because the issues at stake can, at times, be as serious as life or death. It is important, too, to recognise that we will protect legal aid for immigration detention and where there is domestic violence. We are also keeping legal aid for most immigration judicial review cases, which are very often the most complex cases.

This approach means that under our reforms we will continue to spend £70 million of the current £90 million budget in relation to immigration cases. My noble friend Lord Newton talked about a disproportionate share. I think that our reform, with an expectation that some £70 million out of the current £90 million budget will continue to be spent, is an indication that this has been examined in some detail.

However, the corollary of protecting legal aid, particularly in the key areas to which I have just referred, is that it is necessary to be more far reaching in others. At a time when our fiscal difficulties have been acknowledged by a number of contributors, I do not see how it is always possible to justify the extended use of limited resources; for example, for foreign students who may wish to study here but who do not have a connection with the United Kingdom. When difficult choices have to be made sometimes it is very easy to accept the principle that those choices are necessary but it is more difficult when you try to translate them into specific areas.

I shall pick up specific points made by a number of contributors, not least by the noble and learned Baroness, Lady Butler-Sloss, who acknowledged the accession to the convention that was recently confirmed. The noble and learned Baroness knows, because we debated it in Committee, that the Government provide £2 million per annum for support to trafficked victims to help to rebuild their lives and that can include information about legal rights. I think it is known by your Lordships that that £2 million is distributed by the Salvation Army. The convention requires legal counselling, including information about people’s rights. There are no immigration applications as such that trafficking victims need to make. They are automatically granted 40 days' leave; then they may be granted 12 months’ leave if they are assisting the police, or up to three years’ leave if there are compelling circumstances to do so. That is decided on the known facts of the case and they do not need to apply for it.

19:15

As was acknowledged by the noble and learned Baroness and by the noble Lord, Lord Bach, we debated an element of trafficking last week when the Government accepted, in principle, much of what the noble and learned Baroness proposed in her amendment. We have agreed to return at Third Reading with amendments dealing with advice for victims of trafficking and we will certainly consider the points raised in this debate about including immigration advice with that. I think I indicated last week to the noble and learned Baroness that there will be engagement between her and officials in the Ministry of Justice.

In general, we believe that many immigration cases—I think my noble friend Lord Boswell touched on this—are relatively straightforward and individuals should be capable of dealing with their applications without the assistance of a lawyer. The issues raised are often not complex legal ones. I hear what the noble Lord, Lord Bach, said in reference to that. I do not have before me the details of that or whether it might fall into one of the exceptions that would be within scope. Often they are about whether the facts of a particular case meet the Immigration Rules.

We have a tribunals system in this country where appeals are heard and interpreters are provided as necessary. Sharing some of the initial comments of the noble Lord, Lord Borrie, I hope that we have not lost sight of the original point of tribunals which was precisely to allow the resolution of disputes by individuals without the need for complex and expensive legal advice. Indeed, when the noble Lord, Lord Bach, was making his case, I had a similar thought to the one that the noble Lord, Lord Borrie, expressed that perhaps one answer to this would be to simplify the legislation. However, as he rightly points out, that is not on offer today and I cannot make any commitment on that. I think that the noble and learned Lord, Lord Woolf, said something very similar. It is something on which we, in Government, would do well to reflect. I am sure that many areas of administrative law—not just immigration—have grown in complexity over the years, as one layer of legislation has been laid on another.

I, too, agree that coming to or staying in the United Kingdom is of vital interest to those concerned, but practical, general advice and guidance can be available to help them. As we have already indicated, the Chancellor of the Exchequer will include details of substantial new funding for the advice sector when he announces the Budget. At a time of austerity, specialist legal advice on top of that is simply not justified. My noble friends Lord Newton and Lord Avebury spoke about the position of the citizens advice bureaux and the stringent regulations that were brought in by the previous Government. It is my understanding that the citizens advice bureaux can give immigration advice to level 1, which is low-level advice and assistance. Similarly, we will work with the Office of the Immigration Services Commissioner with a view to seeing whether we can exempt local authorities from regulation so that they can offer low-level advice and assistance as well.

[Lord Newton of Braintree]

My Lords, will the Minister acknowledge that part of the reason for introducing the Office of the Immigration Services Commissioner was the poor quality of the advice that people were getting at these tribunals from people who simply did not know what they were doing? The new service was designed to ensure that they would get proper advice, and we should think very carefully before going back to the preceding regime.

[Lord Wallace of Tankerness]

My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.

Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.

I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.

[Lord Bach]

My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government’s position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.

The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there—such an absolutely wrong sense of priorities—that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.

I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.

19:24

Division 1

Ayes: 179

---

Labour: 143
Crossbench: 26
Independent: 4
Bishops: 2
Conservative: 1

Noes: 198

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Conservative: 120
Liberal Democrat: 64
Crossbench: 11
Ulster Unionist Party: 2

19:36

Amendment 74A

Moved by

[Lord Stevenson of Balmacara]

74A: Schedule 1, page 141, line 3, at end insert—
“Debt management and relief or remedyCivil legal services in relation to any debt management relief or remedy available under Part 5 of the Courts, Tribunals and Enforcement Act 2007.”

[Lord Stevenson of Balmacara]

My Lords, I rise to speak to Amendments 74A and 74B about legal aid for debt, and in so doing I declare an interest as chair of the Consumer Credit Counselling Service. Under the proposals in the Bill, all legal aid for debt issues, including advice, is excluded from the scope of legal aid, except for legal services provided in relation to a bankruptcy order against individuals, under Part IX of the Insolvency Act 1986, where the individual’s estate includes their home. The purpose of our amendments is to reverse that proposal. We believe that it starts from the wrong premise, that it will not save money and that we will lose an effective and well used remedy, the debt relief order, which helps the poorest and most indebted in our society.

Debt problems are sadly increasingly common, and unless dealt with promptly and effectively can have a major impact on individuals, families and communities. A recent report from the Legal Services Commission confirms that there are a variety of causes of debt problems, the most common being changing circumstances such as ill health, relationship breakdown and loss of employment. Qualitative interviews, and I confirm this from my own experience, often reveal particularly distressing impacts on parents’ relationships with their children and on the wider family. More generally, debt problems have been found to make it difficult for people to carry on living normal lives.

In the same report, the average cost to the public and in lost economic output is estimated at over £1,000 per debt case, with more serious problems involving costs of many times this amount. So we can say with some confidence that debt problems are serious and that they can, and often do, have direct consequences. We therefore reject the premise that debt cases should be removed from the scope of legal aid.

When we debated this issue in Committee, the point was made that all debt problems are underpinned by complex contractual obligations and that, in the majority of cases, such advice and support take place within a legal framework that will involve issues of liability, consumer credit contracts, creditors’ enforcement powers, statutory debt remedies and enforcement processes within the court system and beyond.

As I have mentioned already, there is another dimension to this, which is that most, if not all, of those who contact my charity and other providers of debt advice almost always have other issues, such as illness, employment problems or relationship problems that have either caused the debt problem or contributed to it. It is this compounding effect that makes the withdrawal of legal aid for all debt issues such a simplistic proposal. Therefore, my second point is that debt problems should not be removed from the scope of legal aid because the economic and social consequences far outweigh the savings that are being proposed.

Our third point is expressed in Amendment 74B. We think that the withdrawal of legal aid for debt will in effect lead to the closure of the debt relief order system, which is operated by the Insolvency Service. DROs can be considered only by application via approved intermediaries working for organisations that have to be approved by the Insolvency Service. Approved intermediaries are usually experienced debt advisers, the vast majority of whom are based in citizens advice bureaux around the country, and they are currently funded by legal aid.

In 2011, nearly 29,000 debt relief orders were made, of which 70 per cent were processed by CAB debt advisers in their role as authorised intermediaries. Citizens Advice has made it clear that it will not be able to employ a sufficient number of approved intermediaries if legal aid is withdrawn. If the Bill goes ahead in its present form, it is clear that the DRO system will not survive. More than 20,000 families a year who would otherwise be able to write off their debts will not be able to do so.

It is a classic Catch-22; you can proceed with a DRO only through an authorised intermediary approved by the Insolvency Service. If the legal aid funding is cut, there will be no authorised intermediaries and the DRO scheme will simply wither on the vine. This is not just a cut in the legal aid bill; it is the end of a good and effective debt solution introduced in 2007 and used since then by thousands of families faced with disaster. It simply should not happen. I beg to move.

[Baroness Coussins]

My Lords, I support Amendments 74A and 74B, to which my name has been added. I declare an interest as president of the Money Advice Trust. In that capacity I have sat in as an observer at the National Debtline and the telephone helpline service that the Money Advice Trust runs, and I have heard first hand some up-to-date examples of the complexity of debt problems. This has brought me to the conclusion that the problem here—which these amendments are designed to resolve—is that when this proposal was framed in the Bill, sufficiently careful attention was not paid to the distinction between legal advice for people with debt management problems and general debt advice.

The Money Advice Trust tries to prevent existing debt problems running out of control, especially when they are tied up with other issues such as mental health problems or the threat of repossession. While we are talking about complex problems that require the advisers to be quite expert—and certainly sensitive—we are nevertheless talking about first-stage generalist debt advice. This is way beyond the point at which the client needs legal advice.

My understanding is that the Government view debt advice as “not strictly legal work” and feel comfortable about the withdrawal of legal aid because they expect that services such as the Money Advice Trust’s debt helpline will provide appropriate advice services instead by phone—the withdrawal of legal aid is neither here nor there. As I understand it, this shift in service responsibility has not even been discussed, formally or informally, with the Money Advice Trust, and it is precisely because the kind of debt advice that the Money Advice Trust provides is different from advice that is “strictly legal” that legal aid needs to be retained.

The Money Advice Trust describes what it provides as “assisted self-help”—preparing budgets, helping clients seek additional benefits, helping them calculate acceptable repayments to creditors, and so on—but this is not legal advice. The Money Advice Trust is not equipped to provide legal advice; for example, it cannot advise clients on their chances of success in court or prepare them for court hearings, or how to get statutory debt relief or challenge collection and enforcement actions. If people needing formal legal advice were to rely on the Money Advice Trust, it simply would not have the capacity or the expertise to help them. The 200,000-odd people who go to that service every year would get much poorer outcomes.

In the long run, the cost of the gap in provision that would be created by the withdrawal of legal aid in these circumstances would end up being far greater, and would therefore frustrate and subvert the Government’s perfectly reasonable objective of saving money. People with debt problems need the services of organisations such as the Money Advice Trust but they may also need formal legal advice, and when and if they do, it would be uncivilised to deny them access to legal aid.

I urge the Government to think again carefully about the distinction between legal advice and more generalist debt advice of the sort that this charity provides, and to accept these amendments.

19:45

[Lord Clinton-Davis]

I will not follow the noble Baroness because she made an unanswerable case. I support her 100 per cent.

I want to talk primarily about unfair dismissal—

[Noble Lords]

That is the next amendment.

[Lord Clinton-Davis]

I am sorry.

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

The noble Lord, Lord Clinton-Davis, was always known for his impetuosity.

I pay tribute to the noble Lord, Lord Stevenson, and his ongoing interest in debt matters. However, this amendment would have the effect of broadening the availability of legal aid for debt cases, contrary to our current proposals, which are to retain legal aid for priority debt cases only, where the individual’s home is at immediate risk of possession because of rent or mortgage arrears or involuntary bankruptcy.

It is never an easy decision to restrict the availability of funding but economic reality dictates that we focus scarce resources on the cases that are the highest priority. The Government have taken a principled approach to making spending reductions, prioritising funding for those categories of case that are most serious, such as where life, liberty or immediate loss of home are at stake. The necessary corollary of protecting funding in the most important areas is that we have to make tougher choices in the lower-priority areas.

When making these decisions, we have taken into account the presence of alternative appropriate forms of advice. It is simply not the case that legal advice is the only—or even the best—response to debt problems. Figures show that liability for the debt itself was reported as successfully contested in fewer than 2 per cent of cases in 2009-10, and also reveal that 62 per cent of legal help funding for debt matters was spent not on complex matters of law but on negotiating payment arrangements and advising clients on managing their affairs better.

We recognise that debt problems can be difficult and stressful for the individuals concerned, but we believe that what people often need is practical advice and support, rather than specialist legal advice. This help is quite widely and effectively available from organisations such as Credit Action, the National Debtline, the Consumer Credit Counselling Service and the Insolvency Service inquiry line and website. Local authorities also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust, to which the noble Baroness, Lady Coussins, referred, has recently launched “My Money Steps”, an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online “Debt Remedy” service.

Such sources of help are best placed to deal with issues like debt relief orders, which this amendment suggests should be brought back into the scope of legal aid. These orders are relatively informal procedures, used by people who owe limited amounts of money and do not have assets. Indeed, the current legal aid scheme does not pay for their completion.

Given the availability of alternatives, and the pressing choices forced upon us by the economic situation, it does not seem a wise use of scarce resources to continue funding widely available legal advice, much of which replicates advice available elsewhere. We must move away from the assumption that for many problems that are fundamentally non-legal, the only answer is for the state to pay for legal advice.

I understand that this amendment is motivated in part by the noble Lord’s concerns about funding for citizens advice bureaux to provide debt advice. As I have said in earlier debates, we share that desire to see what can be done to help to ensure sustainability for the non-profit sector. However, let us not overstate the impact of our changes in legal aid on CABs. Legal aid funding is intended for specialist advice, not for cross-subsidy of other activities. As a matter of practice, in 2010, 85 per cent of all bureaux funding came from sources other than legal aid and half of all bureaux do not hold a legal aid contract at all. Moreover, it should be borne in mind—I am sure that the Opposition will be glad to know this—that we have already provided £20 million, which has come ahead of reductions in legal aid spend.

It is worth remembering that CABs have not had any cut in legal aid spend and will not until 2013. Of that £20 million, £16.8 million assigned to England is being used for the Advice Services Fund to support not-for-profit providers in delivering essential advice on debt, welfare benefits, employment and housing. Despite the concerns of the sector, the Money Advice Service will continue resourcing the existing free face-to-face debt advice services after 31 March, so that people in need have access to good, free advice. The Financial Services Authority has agreed to fund this provision from April.

I also understand that the Cabinet Office’s review is expected to conclude shortly and will provide recommendations on proposals to secure long-term sustainability of the sector. As my noble and learned friend Lord Wallace pointed out, it is only nine days to my right honourable friend the Chancellor’s Budget. Therefore, I would ask the House to be patient and to allow us to bring this important work to its conclusion.

It is always easy to make the case for spending but tough times require tough decisions. I hope that even our critics accept that we are making genuine attempts to protect the not-for-profit advice sector, not least by the pressures brought to bear by my noble friend Lord Shipley at earlier stages of this Bill and by other Members of this House who have raised the specific issue of the CABs and the not-for-profit sector. I have given assurances about this and, against that backdrop, I urge the noble Lord to withdraw his amendment.

[Lord Stevenson of Balmacara]

My Lords, I thank the noble Baroness, Lady Coussins, for her contribution to this debate and for sharing her experience of working directly in this field, which I echo. I recognise many of the points that she made around that. It was also nice to have the unprompted support of the noble Lord, Lord Clinton-Davis. I seem to be having a little run of these things because the previous time I tried to speak about this subject, the noble Lord, Lord Best, came in on housing, which, although again relevant, was not exactly helpful to my support. Never mind, we will battle on.

At last weekend’s Lib Dem conference, a Motion was passed calling for:

“The protection of fair and equal access to justice, through … A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.

It was unanimously passed but I notice that the Minister did not mention it when he made his remarks a few minutes ago.

A lot of the points that I made, which were picked up by the noble Baroness, Lady Coussins, were about the difference that had to be made between legal advice and generic advice. It is certainly true that a lot of work is going on in the generic debt advice field but we have been facing problems in terms of legal advice. I notice that in his comments the Minister made more of a case for support of the voluntary sector in this area, which of course we are grateful to have, than about the individuals who we think will be affected by this. For example, if the bailiffs are at the doorstep seeking to seize someone’s goods and chattels, I think that everyone in this House would agree that they are reasonably said to be facing serious direct consequences. Yet, under the present proposals, they would neither be eligible for legal aid to contest the original order nor would they be able to access legal aid to challenge the manner in which the order had been carried out. Indeed, we know a lot about that. There are quite serious difficulties within the legal advice sector of debt which have not really been picked up in this debate so far.

It was interesting that the Minister made the point that currently debt relief orders were not being funded to any great extent by legal aid and that, to some extent, legal aid should perhaps not be used at all for this. The key reason why the DRO scheme is successful is its lower cost, which was much trumpeted by the Insolvency Service. That is because the administration fee is £90, of which £80 goes to the Insolvency Service, leaving £10 for those who have to administer it. I have looked carefully at the way in which these forms are created. It would take me a great deal of time to work through these things and I am an accountant. However, specialist support and advice is needed. I think that it is ingenuous of the Minister to say that somehow this will survive. My charity estimates that it costs us about £350 per case to deliver a completed DRO. Where will that money come from? I do not think that we have had any answer to that.

Finally, the way in which the noble Lord went on seems to suggest that he has not read the BIS Select Committee report on debt management, which was published last week. The report states:

“Citizens Advice informed us that the legal aid budget for debt advice in England and Wales is due to fall by 75 per cent from 2013”.

The noble Lord admitted that there would be some changes after 2013. The report continues that the,

“figures, from the Justice Department, suggest that the number of people currently helped with debt problems will fall by 105,000”,

which is a significant number.

Later in the report, a BIS Minister is reported as recognising that,

“the cuts to legal aid could be a problem. Clearly for particularly some Citizens Advice Bureaux and other advice agencies, it may well have quite a big impact … I am afraid these are not easy times. There are cuts being made”.

The situation facing those in debt in this country—very often not of their own accord and they certainly are not the feckless poor—is really difficult. I do not think that these proposals will help. I should like to seek the opinion of the House.

19:56

Division 2

Ayes: 151

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Labour: 127
Crossbench: 17
Independent: 3
Bishops: 1

Noes: 194

---

Conservative: 116
Liberal Democrat: 64
Crossbench: 10
Ulster Unionist Party: 2

20:08

Amendment 74B not moved.

Amendment 74C

Moved by

[Lord Bach]

74C: Schedule 1, page 141, line 3, at end insert—
“Unfair dismissal1 (1) Civil legal services provided in respect of employment cases where a person has been unfairly dismissed.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”

[Lord Bach]

My Lords, the House will remember that we had a robust debate on this issue in Committee and some valuable contributions were made, particularly by the noble Lord, Lord Pannick. I shall refer to some of the points he made in a moment. Legal advice for employment law matters is used by around 15,000 people a year, and at current levels we spend £4 million on it, which works out at around £300 per advised person. This advice deals with issues such as unfair and wrongful dismissal, redundancy, contract disputes, discrimination, strike action, data protection and employee confidentiality, and wage issues such as when people are paid below the minimum wage. It goes without saying that these issues are of considerable importance to the individual and to the state.

Someone who is dismissed and is unable to get fair recompense or their job back becomes a burden on all taxpayers. It is one that most of us are willing to bear. Jobseeker’s allowance is a safety net for precisely these kinds of people, but it is one that we should not bear unduly. Legal advice is valuable when attending a tribunal because the other side, that of the employer, is nearly always represented, certainly by a lawyer and often by counsel. The inequality of arms between a cleaner who is being paid below the minimum wage and their employer’s counsel is substantial. There is an alternative to legal aid, of course—that of damages-based agreements. But those agreements are not yet widely available and they are not available at all for certain classes of case. Worse, they leave the most impecunious sometimes at the mercy of predatory claims managers.

In Committee, the noble Lord, Lord Pannick, outlined four particular concerns. First, he highlighted the importance of employment rights. He contrasted these with environmental pollution rights, which remain in scope. The second was the point about equality of arms and the injustices that flow from that. The third point was the illusory nature of the savings in that through state benefits we will essentially subsidise bad employers, who will not be brought to justice. His fourth point highlighted a perverse consequence of the Bill as it is now drafted. Given that discrimination remains in scope, we are going to see an awful lot of people tacking discrimination claims on to their dismissal claims. The noble Lord may remember that such a problem arose when defamation was not within the scope of legal aid but malicious falsehood was. That led to many legal aid cases being brought under the Trojan horse of malicious falsehood, where the most appropriate tort for that was defamation. That loophole was closed in 1999, but this Bill as drafted intends to reintroduce a number of what we would call perverse incentives, of which this is perhaps the most obvious.

As I have said, employment legal aid costs £4 million a year, but accepting this amendment will not cost £4 million a year. The amendment does not change the Government’s ability to set their own budgets—rather, it is a statement of principle that employment law is important and complex, and that victims of abuse need redress and advice on how to seek that redress. EJ Cohen was cited the other day in aid of legal aid; he said:

“The State is not responsible for the outbreak of epidemics, for old age or economic crisis. But the state is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor”.

Employment law exists to protect citizens—hard-working ones, often—from unfair and unlawful practice by employers. At its best, it evens up the natural imbalance between the rights of employers and those of employees. We did not create those laws out of folly, but because there was abuse after abuse which forced us to act. Many good employers are grateful for the fact that good, fair employment laws exist. However, despite these laws and the access to justice that was promised when legal aid was introduced for employment law, there remain—and the Government have to take this into account—some bad employers out there.

20:15

I hope that noble Lords have had a chance of seeing the citizen’s advice bureau’s very good briefing, Out of Scope, Out of Mind. It details some cases, one of which is this:

“Steve, a 59 year old man, was suffering from multiple health problems including arthritis of the knee and heart problems. The CAB helped him with various problems, including debt”—

it will not be able to do that now—

“employment and benefits, under their legal aid contract. Steve was originally a manual worker, working on power lines, but was no longer able to carry out this work because of health problems. He was on statutory sick pay and then claimed employment and support allowance, but when he attended the medical he was found fit to work. He appealed twice but lost both times, with his benefits stopped. He could not get jobseekers allowance because he had not been made redundant. His employer told him this wasn’t possible, as his job was still open. Based on advice from the CAB employment caseworker, Steve discussed options with his employer who agreed to him working part-time on lighter duties”.

The moral of this tale, so says the CAB, is this:

“Had legal aid advice not been available to help Steve with his employer, he would have been left in limbo, unable to work and with no income, potentially leading to homelessness”.

It could lead also to a much greater cost to the state.

That was a win-win. The employer was able to retain the experience of the employee and put him to good use—he got a job—and the state did not have to step in at the taxpayer’s expense. In fact, through national insurance and income taxes, the state benefits. That is not a bad example, I hope the House feels, of how this kind of advice has so many broader benefits and saves so much more than it costs.

By these two amendments, we are attempting to ensure that mischief is subject to sanction and that employees of bad employers can assert their rights with the right advice and with a proper chance of succeeding. To fail to do so will create a burden on the state. It will essentially reward bad employers—for example, those who contravene the law by paying people less than the minimum wage, which still happens, or through other practices—and it will disadvantage good employers, the majority, who respect and value their employees.

It is hard not to see this proposal in this Bill as part of a general government policy to change the balance of employment law and to make it much more difficult for employees who have been wrongly treated to get justice. There are many examples that may be mentioned in the debate that follows, but to take £4 million out of legal aid to achieve this result seems to us on this side to be absolutely ridiculous. I beg to move.

[Lord Clinton-Davis]

I follow my noble friend on this issue. I apologise for confusing the amendments in the previous debate.

I hope that the Liberal Democrats will abandon their rather erratic behaviour on this occasion. The unfair dismissal amendment is vital for employees who are not unionised or where the trade unions are unable to act. I do not think there is any real chance of such employees being able to pursue their remedies effectively. That is the crux of the matter. Quite often the claims they wish to make are complex and they need professional advice. Unfair dismissal affects their livelihoods—make no mistake about that—and what is proposed in the Bill represents a bonus for unfair employers. That is wholly out of accord with what we on this side seek to achieve.

As to unemployment disputes, the significance of this proposal places an unfair burden, again, on the employees. How are they going to pursue their claims without the necessary machinery provided by the trade unions where this is not possible, or where they are expected to pursue their claims themselves without any professional advice? It is a wholly illusory and complicated procedure and ought not to be considered by any respectable Government.

Having been a lawyer for some 50 years, in both cases—unfair dismissal and employment disputes—there is no doubt in my view that professional advice is imperative. Otherwise, people will pursue claims that ought not to be pursued and eventually it will cost the taxpayer far more than if they were able to pursue the policy envisaged by these amendments.

[Lord Faulks]

My Lords, as a young barrister I had quite a lot of experience of going to employment tribunals. It has now become fashionable to talk about equality of arms but on those occasions when I represented the employer I dreaded the moment when the employee was unrepresented. This usually meant that, quite rightly, extra steps were taken by the chairperson and those assisting him or her to make sure that everything possible could be said on behalf of the employee. On the whole, while I am sympathetic to what underlies the amendment, these tribunals were designed for access by ordinary people without lawyers and, while I should be the last person to stress the fact that lawyers are not always the answer, on this occasion I need some convincing.

[Baroness Turner of Camden]

My Lords, I have spoken on this issue several times in the course of the discussion on the Bill. I support the amendment wholeheartedly. I speak, of course, as a former trade union official. It was my job when working for my union to have charge of the legal aid system that we applied to members. When I saw the provisions in the Bill, I hoped that the unions would begin to impress on their members the necessity of belonging to and having the support of the union when they are faced with this kind of problem.

It is, of course, an enormous problem for the ordinary worker and his family, who depend upon his employment, when they suddenly no longer have it. If the worker has been unfairly dismissed, they need to have access to a way of compensating them for their loss. Unfortunately, the Government also have employment policies in train generally that are designed to make it easier for employers to get rid of workers when they wish to do so.

The arrangements that the Government have in mind, which we have discussed from time to time in this House, are that if the worker wants to get to a tribunal he should have to pay to get there. A fee of £1,000 has been suggested. Furthermore, when a worker gets before a tribunal in future, it will not be a tribunal made up of lay members who have some knowledge of the working practices and industry generally; it will be before a judge sitting alone. In other words, it will be a much more legal system, but there will be no legal assistance to represent the member. All I can suggest to the Government is that perhaps there will be consequences that they had not foreseen. In other words, there will be much more interest in union membership and unions will increase their members—and the Government may not be very pleased about that.

[Lord McNally]

On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.

Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice—a point made by my noble friend Lord Faulks.

I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.

As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.

[Lord Bach]

My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.

The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then—the noble Lord tells me that it was not much, and of course I believe him completely—and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.

20:30

[Lord Martin of Springburn]

On that point, does the noble Lord agree that government departments and health services all turn up with lawyers when they are defending an unfair dismissal? The Government will use lawyers, but they are saying that those who are seeking to fight their case do not need lawyers.

[Lord Bach]

The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.

We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:

“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.

Secondly:

“The continued provision of legal aid”—

yes, legal aid—

“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.

That seems to me like an employment tribunal. Lastly:

“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.

Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.

[Lord McNally]

I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are spending £50 million, that suggestion just does not add up. It is hyperbole and the facts are a long way apart. I had no difficulty in accepting that resolution because it shows that my party continues to give high priority to this issue but a high priority based in the reality of the economic situation that we face.

[Lord Bach]

I am much obliged to the Minister. He supported, then:

“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”,

did he? He supported, to repeat:

“The continued provision of legal aid, for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.

I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now—for advice in many cases, and sometimes for representation—but will not be available if this Bill goes through in this form, that is it.

[Lord Clinton-Davis]

Is it not quite usual for the Minister to stand on his head?

[Lord Bach]

A few months ago I would have said no; now I am not quite sure. I just find it incredible that the Government seem to have taken no notice at all of this wonderful resolution, which was passed unanimously. It is extremely depressing that we find ourselves in a position where people who may have lost their job completely wrongly or suffered other wrongs in their employment are now not able to get that advice because they do not have the resources. The cost to the Exchequer is £4 million a year. Is there nothing else that the Government could have found in order to save employment law as we know it?

It is always tempting to have a vote but, because of matters beyond my or indeed the Minister’s control, we have started this series of important debates at a ridiculous hour, 6.30 pm, and it becomes really stupid to have a vote at this stage. With considerable reluctance, I beg leave to withdraw the amendment.

Amendment 74C withdrawn.

Amendment 74D not moved.

Amendment 75

Moved by

[Lord Best]

75: Schedule 1, page 141, line 7, at end insert
“(1A) Services provided to an individual at risk of losing their home under sub-paragraph (1) shall include services in relation to the entitlement of the individual to welfare benefits relating to housing costs.”

[Lord Best]

My Lords, Amendments 76 and 77 are consequential on Amendment 75. Amendment 75 relates to legal aid for work covering welfare benefits advice and casework relating exclusively to the potential loss of a home because of the non-payment of rent or mortgage. The amendment is advocated by Shelter and backed by Citizens Advice, Justice for All, the Law Society, the Law Centres Federation, the Salvation Army, Young Legal Aid Lawyers, the Legal Aid Practitioners Group, the Housing Law Practitioners Association, the Bar Council and the Advice Services Alliance.

The amendment addresses an anomaly in the Bill. Very properly, the Bill leaves legal aid as it is in funding work to defend possession proceedings in the courts, and I commend the Government for prioritising this support. However, the proposal in the Bill is for legal aid funding to be withdrawn for the advice and support surrounding possession proceedings that at present prevents these housing cases from clogging up the courts and leading unnecessarily to homelessness thereafter. I gather that between one-quarter and one-fifth of the time of the solicitors and caseworkers dealing with clients’ potential loss of their homes goes on sorting out the non-payment of rent or mortgage, usually relating to benefit claims. Typically, this means discovering that arrears have built up because of a problem with the administration of housing benefit. Unsurprisingly, in view of the complexity of these arrangements, local authorities can make bureaucratic errors, claims forms can be lost, incorrect payments can be made and so on. At present, legal aid makes possible the service that can often sort out these matters through an expert contacting the officials on behalf of a probably confused or inarticulate tenant. The same goes for claims for support for mortgage interest by homebuyers who lose their jobs but are likely to be unfamiliar with the processes of seeking benefits.

The shift next year from councils administering housing support for tenants to the Department for Work and Pensions doing so is likely, at least for the first year or two, to compound the problem. It is not just that officials new to the task will need to learn the ropes but that the loss of close working relationships between local landlords and local authority benefit teams will take away an important dynamic for sorting out these difficulties.

Shelter’s extensive experience of thousands of cases each year is that the possession claims due to rent arrears can often be headed off at the pass by the Shelter adviser making speedy representations to the housing department that may well have failed to assess a housing benefit claim appropriately. Without legal aid, thousands of cases would certainly have gone to court, using court time and public money, and might still not have been resolved. Worse, without this help many tenants would have lost their homes through no fault of their own.

On other occasions, tenants will leave matters until the last moment and the case will have to go to court. However, an adjournment will often be granted, usually for four weeks. During that time, the legal aid-funded adviser can beaver away, establishing the facts and negotiating as necessary with benefits officials. If in the future the advisers in such cases are not able to handle the support with benefits claims, if they can deal with matters only in the courts and are not free to treat with officialdom on behalf of the client, and if they have to sit on their hands and do nothing for four weeks after an adjournment, people will lose their homes and costs to the taxpayer will rise. The courts will have more adjournment hearings, landlords will not get arrears paid off and justice will not be done.

The chief executive of the South West London Law Centre has explained to me that, in future, to engage the housing benefit officers in a dialogue it will be necessary to issue witness summonses to bring them to court because dealing with them outside court processes will no longer be funded. That would mean costs to benefit officers from having to travel to the court and, no doubt, spend time hanging about, perhaps facing difficulties from not having all the right files with them. It is obviously better for the legal aid-funded expert to deal directly with the official before or during the four weeks of adjournment of a case when so often the problem can be sorted out. If benefits advice relating specifically to possession proceedings is taken out of the scope of legal aid, the funding that remains covered by it—75 per cent to 80 per cent of expenditure—will be much less effective.

In Committee, I argued for the continuation of legal funding to cover many other aspects of housing cases. However, the amendment before us today is much more modest, much more focused and simply retains the scope of legal aid to provide benefits advice and casework where possession is being sought by the landlord or the mortgage company. It seems certain to cost the state a good deal less than removing from the scope of legal aid the funding that pays for the work that prevents and solves problems, and ensures that the rest of legal aid spending and the time of the courts is not wasted when matters could be settled away from the courtroom. It means that the Bill will not unwittingly lead to the injustice of people unnecessarily losing their homes because there was no one there to sort out the problems with their benefits, particularly in the next year or two when the whole housing benefit system will go through such dramatic change.

The amendment represents a very modest change to the Bill but an important and cost-effective one. I hope it is acceptable to the Minister. I beg to move.

[Lord Howarth of Newport]

My Lords, I fully endorse the amendment proposed by the noble Lord and will add just two points for the consideration of the House that I do not think he touched on. I take it that his amendment would encompass legally aided advice in relation to council tax benefit as well as to housing benefit and support for mortgage interest, which he mentioned. We know that, under the changes that the Government propose, adjudications about council tax benefit will become very contentious. The rules for council tax benefit will be made locally and will vary, perhaps significantly, from one local authority area to another. I wonder whether when he responds to the debate the noble Lord, Lord Best, would comment on that.

My other point is a reflection that I should like to put to the Minister. Having looked at outcomes and data provided by the Legal Services Commission, Citizens Advice has found that legal aid to advise benefit claimants represents a very good investment, certainly where housing is concerned. It has computed that for every £1 invested in advice on housing benefit, some £2.34 is saved for the public purse. Indeed, across a range of benefits—others are outside the scope of the amendment—it has found that the saving to the public purse may add up to as much as £8.80 for every £1 invested. I understand that the Government do not agree with those figures that Citizens Advice has put forward. It would be helpful if the Minister could say something about those calculations. If the Government do not agree with them and he is not ready to refute them in detail this evening, perhaps he will write to those of us who have been actively involved in this Bill to explain on what grounds the Government refute the Citizens Advice calculations.

20:45

[Lord Beecham]

My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:

“I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place”.

He goes on to say that it is far more cost-effective if the legal representative is able to help resolve the problems,

“whilst assisting in defending the possession proceedings themselves”.

Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.

Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases—that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.

It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter’s assistance provided under the legal aid scheme, that simply would not have happened.

The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.

Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:

“There is little or no overlap between the legal advice funded by legal aid and the sort of factual advice on entitlement offered by Jobcentre Plus”.

It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.

Finally, the Minister observed:

“Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including … delaying the possession matter until the benefit matter is resolved”.—[Official Report, 18/1/12; col. 697.]

However, that assumes that landlords are willing to wait. That is not Shelter’s experience. It is clear that,

“landlords will not agree to delay the possession matter unless they are assured that”

the tenant,

“will be actively assisted in resolving the benefits problem”.

That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.

The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid—notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government will not accept them. I join the noble Lord in urging the Minister to look more sympathetically at this issue, given the serious consequences that can ensue and that could have an impact on other elements of public expenditure. If a family is evicted, one may find that the costs of rehousing fall on the public purse—perhaps even the costs of taking children into care and so on. That is less likely to happen when the landlord is the local authority, but it might well arise in the private sector. The economics are not therefore as straightforward as even the noble Lord would suggest. I hope that there will be a sympathetic response—if not tonight, then before and at Third Reading.

[Lord McNally]

My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.

Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.

Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.

In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.

To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where the benefit dispute is ongoing at the point where repossession action is taken, legal aid will be available in relation to the action. Legal aid could be used to argue for adjournment of possession, as I said.

On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.

The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.

We do not believe that we have got it very far wrong on housing, and I hope that the noble Lord will withdraw his amendment.

[Lord Howarth of Newport]

Will the noble Lord be kind enough to write to us with a detailed refutation of the specific figures that Citizens Advice has put forward in all good faith and on the basis of careful research? That is important and a lot of people would be interested.

[Lord McNally]

I will consider that matter, but quite honestly, during the passage not just of this Bill but of every Bill, lobbying organisations produce reports—as the noble Lord says, in all good faith. To answer every one might overburden a relatively small department working on a small budget. I will consider that request.

21:00

[Lord Best]

My Lords, I am grateful to the noble Lord, Lord Howarth, for his support. Certainly council tax benefit is going to cause some administrative headaches in the months and years ahead, and that would be part of the package covered in the amendment, as would support for mortgage interest. However, housing will be the big one, not least—I promise that I will not go into this—the under occupation penalty that is going to be introduced, over which there will be endless wrangles, and there will be arrears for some people, leading, I fear, to possession proceedings.

I am also very grateful for the support of the noble Lord, Lord Beecham, who made the point that mistakes will undoubtedly occur. That is the way of things. Without the opportunity to make representations directly to the administrators, those mistakes will go undetected and people will lose their homes as a result.

I am grateful to the noble Lord, Lord McNally, for clarifying a number of matters and for giving me some important food for thought. He told us that where possession action is contemplated, legal aid might be available to agree, with the landlord, to an adjournment of the case. That is important. However, the amendment is trying to say that there must be the opportunity to spend legal aid funding on the representations that follow with the people administering the housing benefit.

I was glad to be clear that funding will be available to negotiate with the mortgage company where people are in arrears with their mortgage repayments. However, why would it therefore not be available for dealings with the housing benefit administrators, who may be the ones with whom the dialogue needs to be held? An expert needs to talk to the people in question. I fear that leaving people to their own devices will not work.

In terms of evidence, I have received the usual pile of representations from bodies representing other bodies but also from some front-line people. The Nottingham Law Centre sent me a letter last week saying:

“’Day in day out we represent people who are in arrears due to issues with benefits (particularly Housing Benefit)”.

It says:

“What is the point of representing a client facing eviction, identifying issues with benefits (particularly Housing benefit which is extremely complex) securing an adjournment to resolve those issues but being unable to help to resolve them? It will lead to a need for further adjournments thereby clogging up the courts or it will make it harder to persuade landlords to agree to adjourning cases as there will be less likelihood of a successful result”.

This is the kind of evidence that people who are trying to resolve these issues are faced with. I am afraid they are likely to be undermined without an amendment of this kind. However, at this late hour, and with the opportunity to ponder some of the Minister’s helpful remarks, I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Amendments 76 and 77 not moved.

Amendment 77A

Moved by

[Lord Avebury]

77A: Schedule 1, page 141, line 44, leave out “subject to sub-paragraph (10)”

[Lord Avebury]

My Lords, I shall speak also to Amendments 77B to 77D, and after that my noble friend will probably deal with Amendment 77E, which covers a different matter.

We are grateful to my noble and learned friend Lord Wallace of Tankerness for his Pepper v Hart statement in our previous debate on the effect of the Bill on Gypsies and Travellers that cases under Sections 187B, 288 and 289 of the Town and Country Planning Act 1990 will remain within the scope of legal aid. We are also very grateful to him for giving us the time to explain these amendments to him personally last week.

The main amendment in this grouping—Amendment 77B—would remove paragraph 28(10) of Schedule 1, to which I now turn. As the Minister is aware, we are still deeply concerned about the Bill’s impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action—for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994—then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.

If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.

Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council’s decision to seek possession in the High Court on the basis of the local authority’s failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?

We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady’s brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these conditions. They have been fortunate in having remained on this site for the past four months without being noticed, but at any moment the local authority could seek possession and they would be removed from the site and would be unable to continue to obtain medical advice and treatment, which clearly they desperately need.

Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.

I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided—wrongly, in my opinion—to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe’s High Commissioner for Human Rights.

We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment and on the others in this group, which are consequential. The noble Baroness, Lady Whitaker, will deal with Amendment 77E. This concerns the separate issue of actions under the Mobile Homes Act 1983, which will also be taken out of scope. I beg to move.

[Baroness Whitaker]

My Lords, I apologise for the fact that my voice has not kept up with the strength of my convictions. For that reason, I will say no more about the earlier amendments that the noble Lord, Lord Avebury, spoke to so clearly. Amendment 77E will make a big difference to the security of place for many Gypsies and Travellers. The Bill proposes that all aspects of the Mobile Homes Act 1983, apart from those that concern possession, will go out of scope. The result will be that Gypsies and Travellers living on rented sites will be deprived of legal aid and legal advice of any sort to deal with cases that involve breach of a covenant of quiet enjoyment, succession, resiting of a mobile home, rent increases and repairs. Both the law and the facts relating to these issues can be complex. The consequences of failing to deal properly with them can be serious. They can result in homelessness—even though the intended effect is not to create homelessness—because the tenants are effectively driven out.

The further complication in the situation of many Gypsies and Travellers is that they have not always been educated to read and write, and to be able to follow the complexities of the law. Therefore, because of the situation in which they will find themselves, they will be discriminated against in all these matters. We are talking only about the continuation of the legal aid initial advice scheme for these cases. The provision of this kind of advice is quite cheap and extremely cost-effective.

These actions are not technically called “harassment”, but they amount to it when the person who is on the receiving end cannot deal with them and is cast out of their home. The noble and learned Lord, Lord Wallace, said in Committee that he could reassure us that legal aid would be available for harassment injunctions in relation to the Mobile Homes Act. I was very glad to hear that. It showed that he understood the injustice that can so easily befall people who are marginalised by society, and that it is incumbent on society to reduce this marginalisation. Given his helpful response, I ask him to consider whether cases of breach of a covenant of quiet enjoyment—that is to say, Article 8 rights under the Human Rights Act—should also be included in the scope of legal aid. If he prefers, he could confirm that the Government intend that such breaches should be included under the term “harassment”. It would be a small step conceptually, but it would make a big difference.

21:15

[Baroness Turner of Camden]

My Lords, I support these amendments. I do not want to add anything to the very detailed case already made by the noble Lord, Lord Avebury, in introducing the amendment. It seems to me that local authorities have an obligation in law to provide sites for Travellers and their failure to do so is responsible for the need to provide legal assistance to Travellers. Otherwise, Traveller families, which include numbers of children, are rendered homeless, and that, in my view, is quite unacceptable. I hope that the detailed amendments before the House tonight meet a sympathetic response from the Government.

[Lord Bach]

My Lords, we agree with the amendments in this group. In Committee, the noble Lord, Lord Avebury, said:

“Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom”—

that was the phrase he used—

“whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted”.—[Official Report, 24/1/12; col. 928.]

In his reply, will the Minister explain to the House why the Government took that decision and changed the policy that had been set up under the previous Government?

[Lord Wallace of Tankerness]

My Lords, as my noble friend Lord Avebury explained in moving this amendment, Amendments 77A, 77B, 77C and 77D are aimed at ensuring that legal aid remains available for possession proceedings for persons who are clearly trespassers on the property or land where they are residing, in particular for people living on unauthorised encampments. Under the Bill, legal aid would no longer be available in such cases.

I valued the opportunity to meet my noble friend Lord Avebury, the noble Baroness, Lady Whitaker, and their colleagues from the Community Law Partnership. It was an opportunity for them to set out in more detail what underlies their amendments and for me to indicate where the Government are coming from on this. My noble friend raised a particular point about the judicial review vis-à-vis the county courts, to which I will return.

Let me say clearly that as a matter of principle the Government believe that they should not be funding individuals to resist eviction where they have unarguably entered and remained on the property or site as a trespasser. The whole rationale of this Bill is to focus scarce resources on the cases that are the highest priority.

I remind noble Lords that the Government amended the Bill in Committee to make it crystal clear that legal aid will continue to be available for possession and eviction matters where there are grounds to argue that the client has not entered the property or site as a trespasser and where there are any grounds to argue that the client has not remained on the property or site as a trespasser. I believe that, with this safeguard in place, it is not an appropriate use of resources to retain funding more widely.

I readily acknowledge that the legal aid position in relation to judicial review is different from the position in relation to possession proceedings concerning those who are clearly trespassers. However, as my noble friend Lord Avebury indicated, we are generally retaining legal aid for judicial review. In any major reform such as this, it is reasonable and necessary to draw relatively broad lines in order to achieve an effective system. We believe that our approach is a reasonable one in the circumstances.

It has been argued that our approach in the Bill cuts across case law that permits public law arguments to be raised in possession proceedings themselves, a point made by my noble friend. As we discussed when we met, along with colleagues from the Community Law Partnership, the Government do not necessarily accept that argument. It is correct that case law has developed so as to allow public law arguments to be raised directly in possession proceedings. Our proposals in relation to legal aid do not affect that. However, there is no legal bar on seeking a judicial review of a public authority’s decision to bring possession proceedings.

We recognise that, as with all judicial reviews, the decision on whether to grant permission for such a judicial review to be brought will be entirely at the discretion of the court. The court will consider a number of factors, such as the availability of alternative remedies, including any grounds that could be raised by way of defence to the possession proceedings.

It has also been argued that retaining the trespasser exclusion in relation to possession proceedings while retaining legal aid for judicial reviews will be much more costly for the legal aid fund. I indicated that I wanted to reflect on this issue. Regrettably there are no detailed data, as the Legal Services Commission does not record whether a recipient of legal aid is a trespasser. Nevertheless, we believe that the number of possession cases involving trespassers that are funded under the current legal aid scheme is likely to be relatively small. Of those cases, fewer still are likely to involve seriously arguable points of public law. Accordingly, we do not consider that the current approach in the Bill will have significant cost implications.

In any event, the amendments would restore legal aid under paragraph 28 of Part 1 of Schedule 1 for trespassers generally, including cases involving trespass to private property or cases involving public authorities where no public law issues in fact arise. In these circumstances, we do not believe that the width of the amendment proposed by my noble friend would be a proper and wise use of the limited funds available.

I appreciate that my noble friend and the noble Baroness are particularly concerned about the Gypsy and Traveller communities. As I stated in Committee, the Government certainly understand the potential impact of the Bill’s provisions on these communities. Nevertheless, we consider that the proposed changes to the scope of legal aid set out in the Bill are both proportionate and necessary to our objective of targeting legal aid to those who need it most while achieving a more affordable system.

I emphasise that the provisions to which these amendments relate apply to trespassers generally, whoever they are. They are not specifically targeted at the Gypsy and Traveller communities. My noble friend asked whether, given the criminal offence of squatting created elsewhere in this Bill, the trespasser exclusion in paragraph 28 now specifically targets Gypsies and Travellers only. The exclusion in paragraph 28(1) of Part 1 of Schedule 1 applies to trespassers generally and not just to Gypsies and Travellers on unauthorised encampments; for example, an individual who squats in a non-residential building would not be committing a criminal offence under the provisions of the Bill and would be subject to the trespasser exclusion for legal aid if the owner of the building brought possession proceedings to evict them. Therefore, we do not accept the argument that the Bill’s trespass exclusion now targets Gypsies and Travellers in particular.

Before I move on to the mobile homes amendment moved by the noble Baroness, Lady Whitaker, the noble Lord, Lord Bach, asked whether the abolition of the regional strategy pitch targets would lead to fewer traveller sites. The Government’s draft planning policy makes it clear that local authorities should set pitch targets based on robust evidence, and the Government are currently considering the responses to the consultation on the draft policy. Rather than imposing top-down targets which fuelled opposition to development, the Government believe that we are offering councils real incentives to develop additional traveller sites in their areas. The previous model of top-down pitch targets under regional strategies did not deliver, not least because between 2000 and 2010 the number of caravans on unauthorised developments increased from 728 to 2,395.

As I mentioned in Committee, the Homes and Communities Agency is responsible for administering the Traveller pitch funding programme and monitoring the use of the funding awarded to local authorities and registered providers. In January this year the Government announced the allocation of £47 million of Traveller pitch funding, which will help provide more than 600 new pitches and refurbish more than 160 existing pitches between now and 2015. This funding is based on payment by results at completion—a question was raised as to why nothing has actually been paid out yet—but £47 million has been allocated and the delivery of the funding allocations will be monitored through the Homes and Communities Agency’s established programme management framework, with quarterly contract review meetings forming part of the process.

The noble Baroness, Lady Whitaker, spoke to Amendment 77E, which seeks to bring into scope legally aided advice for any matter arising under the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. We do not believe that this amendment is consequential to Amendments 77A to 77D.

As I have already argued and as we have already said many times in debates, we are facing a serious financial position. If the justice system is to contribute the necessary savings, it is necessary to focus legal aid on the highest priority cases. Accepting this amendment would mean funding low-priority cases, such as disputes about the sale or inheritance of mobile homes. Once again, I cannot see how this is a good revision of our proposals or an affordable one, not least given that legal help and representation will in any case continue to be made available where the individual is at immediate risk of losing their home, including possession and eviction from a mobile home site.

The noble Baroness asked about harassment, to which I think I made reference in Committee. I confirm that paragraph 32 of Part 1 of Schedule 1 to this Bill brings into scope harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997, which would cover issues where there is harassment.

If we were to accept this amendment it would amount to a strange anomaly whereby exceptions would be made for people who live in mobile homes so that they received legal aid for lower-priority matters whereas people living in other homes would not. We find it difficult to justify that it would be coherent to create such differences between the level of legal aid available to different kinds of home owner. I recognise the commitment which my noble friend and the noble Baroness have to the Gypsy and Traveller community. I appreciate the opportunities we had at our meeting and in this debate to set out our respective positions, but, for the reasons given, I hope that my noble friend will withdraw his amendment.

[Lord Avebury]

My Lords, I am most grateful to the noble Baronesses, Lady Whitaker and Lady Turner, for their contributions to this debate. I should like to begin by pointing out that the noble and learned Lord did not cover the case of the family camped on the roadside for reasons of absolute desperation. There was nowhere else for them to go. They needed to consult a doctor and stopped temporarily in order to receive medical advice and treatment. That was the sort of case we had in mind when framing these amendments in consultation with the Community Law Partnership. It still seems to me that they should have the right to be able to contest an action for possession on public law grounds and that they should be able to do this in the county court. With respect, my noble and learned friend did not refute the allegation that it would be far more expensive to deal with these cases by way of judicial review in the High Court. All he said was that there would not be very many of them but that does not seem to be a very valid argument against the amendment.

The noble Baroness, Lady Turner, said that local authorities had an obligation to provide sites, which they manifestly have failed to honour. The noble Lord, Lord Bach, was good enough to quote what I said at an earlier stage about the contrast between regional spatial strategies under which definite plans were in hand to grant planning permission for sites. That was scrapped and we were left with the unfettered decisions of the local authorities, which I am afraid will not result in the delivery of the sites. My noble and learned friend mentioned the £47 million allocated by the Homes and Communities Agency to local authorities and social housing agencies to provide some 700 pitches. But the agencies in question have not even begun to identify the land on which this money will be spent, let alone apply for planning permission.

Figures provided by the Irish Traveller Movement in Britain in its survey of local authorities show that the number of sites for which planning permission is intended has plummeted by 50 per cent from the figures that were given in the regional spatial strategy. I consulted Essex County Council to see what was happening there. As noble Lords will recall, there was a high profile eviction case at Dale Farm in Basildon. The figures from the council show that under the regional spatial strategies, the minimum number of pitches that were to be provided by 2021 was 965, whereas the planned Gypsy and Traveller pitches in the individual local authority plans that have so far been developed under the present system total 93. So in the county of Essex the situation is worse even than the ITMB survey revealed. Only 10 per cent of the pitches that were intended under the regional spatial strategy are going to be granted planning permission in these particular local authorities. I hope to provide figures for the rest of the east of England, where the regional spatial strategy was fully developed under the previous Government, to show that the intentions of my noble friends of £47 million to provide pitches are pie in the sky. I will offer them 10 to one against the delivery of 700-odd pitches by 2015 for any level of bet they would like to take.

I am very disappointed that we have not been able to make more headway on this minor amendment, but as with the noble Lord, Lord Bach, on the previous amendment, I am afraid that we have come to it late at night, and I do not propose to press it to a Division. I shall withdraw the amendment with the utmost regret.

Amendment 77A withdrawn.

Amendments 77B to 78 not moved.

21:30

Amendment 79

Moved by

[Lord McNally]

79: Schedule 1, page 147, line 18, at end insert—
“Terrorism prevention and investigation measures etc39A (1) Civil legal services provided to an individual in relation to a TPIM notice relating to the individual.
(2) Civil legal services provided to an individual in relation to control order proceedings relating to the individual.
Exclusions(3) Sub-paragraphs (1) and (2) are subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions(4) In this paragraph—
“control order proceedings” means proceedings described in paragraph 3(1)(a) to (e) of Schedule 8 to the Terrorism Prevention and Investigation Measures Act 2011 (“the 2011 Act”);
“TPIM notice” means a notice under section 2(1) of the 2011 Act.”

[Lord McNally]

My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person’s liberty. I beg to move.

[Lord Beecham]

Without prejudice to one’s views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government’s amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.

Amendment 79 agreed.

Amendment 80

Moved by

[Lord McNally]

80: Schedule 1, page 147, line 25, leave out paragraphs (a) and (b) and insert—
“(a) the exclusions in Parts 2 and 3 of this Schedule, except to the extent that regulations under this paragraph provide otherwise, and(b) any other prescribed exclusions.”

[Lord McNally]

My Lords, this is a technical amendment to the drafting of paragraph 40 in Part 1 of Schedule 1. I have written to Peers on this matter, but I am willing to go into further detail if noble Lords wish. However, I assure them that this is a technical amendment. I beg to move.

Amendment 80 agreed.

Amendments 81 to 85

Moved by

[Lord McNally]

81: Schedule 1, page 147, line 36, after “to” insert “a claim in tort in respect of”

82: Schedule 1, page 147, line 37, after “to” insert “a claim in tort in respect of”

83: Schedule 1, page 147, line 39, after first “to” insert “a claim in tort in respect of”

84: Schedule 1, page 147, line 40, after first “to” insert “a claim in tort in respect of”

85: Schedule 1, page 148, line 3, after “to” insert “a claim in tort in respect of”

Amendments 81 to 85 agreed.

Amendment 86

Moved by

[Lord McNally]

86: Schedule 1, page 148, line 8, leave out from beginning to second “a”

[Lord McNally]

My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.

[Lord Beecham]

My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord’s letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister would be so kind as to elucidate, he need not feel that he has to do so at length this evening but could write me a short note.

[Lord McNally]

No, I fully appreciate the noble Lord’s position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.

As I have said previously, the Government’s view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.

The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.

I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.

[Lord Beecham]

I am most grateful to the noble Lord.

[Baroness Hamwee]

I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.

[Lord McNally]

I think that we can all reflect. I will respond to my noble friend after such reflection.

Amendment 86 agreed.

Amendment 87

Moved by

[Lord McNally]

87: Schedule 1, page 148, line 9, leave out “the authority” and insert “a public authority to the extent that the claim is made in reliance on section 7 of the Human Rights Act 1998”

Amendment 87 agreed.

Amendment 88

Moved by

[Lord Bach]

88: Schedule 1, page 148, line 23, leave out paragraph 15

Amendment 88 agreed.

Amendment 89 not moved.

Amendment 90

Moved by

[Lord Beecham]

90: Schedule 1, page 148, line 32, leave out paragraph 16

[Lord Beecham]

My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation—it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight’s discussion—ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.

Moreover, as I recall, the cash in question is fairly limited—a figure of £4 million comes to mind—and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.

I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.

[Lord McNally]

My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government’s vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required as a consequence of our economic situation with the protection of those facing the most urgent and pressing problems. The logic across our reforms is that claims that are essentially financial in nature are of a lower priority than those concerning life, liberty or safety. On the basis that CICA claims are, by definition, primarily about money, the Bill seeks to remove them from scope by including a general exclusion in paragraph 16 of Part 2 of Schedule 1.

My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.

21:45

In addition to the Criminal Injuries Compensation Authority’s own services, Victim Support provides independent advice to victims of crime and this can include help with filling in a CICA application. Though it does not provide legal advice, some offices will deal with CICA on behalf of the victims throughout the process. When an applicant is dissatisfied with an offer or a refusal, they can ask CICA to review that decision. If they remain unhappy, they can appeal to the tribunal, and will need to fill in a four-page form and set out their reasons for disagreeing with the CICA decision.

Lawyers are perhaps understandably inclined to think that disputes always require their expertise to be resolved, but we must not forget the original idea of tribunals; they were precisely designed to be accessible for the lay person, creating a non-adversarial, fact-finding environment that avoids the formality of court proceedings. It is a regrettable fact that we no longer live in a climate where money can be found for any deserving cause. CICA applications are an excellent example of an area where funding would be helpful in some cases but the system is set up in such a way as to be accessible to the vast majority of applicants. The test that we have applied in these cases is not whether it would be nice to have legal aid funding but whether, given that savings are unavoidable, this is an area where the absence of legal aid is likely to cause serious problems, having regard to the importance of the issue at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding, and the availability of other routes to resolution. In our judgment, CICA claims are one area where it is not. I urge the noble Lord to withdraw his amendment.

[Lord Beecham]

The noble Lord will expect me to express my disappointment at that conclusion, in my understanding of the change of role from soft cop to hard cop. Of course, in many cases it is certainly true that advice is not necessary, but I have indicated at least three areas in which they might well have been necessary. I have experience of a couple of those in the rare occasions on which I have appeared before a tribunal, and I am sorry that Ministers have not felt able to make the very modest concession that would have ensured that in those rather more difficult cases—and they are the exception—legal advice would be available. It is not simply a question of filling in a form. However, clearly the Government are not disposed to take further action and, in the circumstances, I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

Amendment 91

Moved by

[Lord McNally]

91: Schedule 1, page 148, leave out lines 38 and 39 and insert “, except as follows—
(a) those services include the types of advocacy listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise;(b) those services include other types of advocacy to the extent that Part 1 of this Schedule so provides.”

[Lord McNally]

My Lords, again, this is a technical amendment, of which I sent noble Lords details. It is a minor technical amendment, and the full explanation is contained in my letter. If any noble Lord who has read my letter or read the amendment wants further clarification, I am very happy to give it. However, I assure them that it is a technical amendment to the opening text of Part 3 of Schedule 1, which deals with advocacy. I beg to move.

Amendment 91 agreed.

Amendment 92

Moved by

[Lord McNally]

92: Schedule 1, page 150, line 2, leave out “paragraph 25” and insert “paragraphs 25 or 25A”.

Amendment 92 agreed.

Clause 9 : Exceptional cases

Amendment 93

Moved by

[Lord Thomas of Gresford]

93: Clause 9, page 6, line 20, at end insert “, or
“(c) that it is in the interest of justice generally”

[Lord Thomas of Gresford]

My Lords, we have finally clawed our way out of Schedule 1 and back into the body of the Bill to meet immediately a difficulty—what is meant by an exceptional case determination under Clause 9. The problem that lawyers see immediately on seeing the word “exceptional” is that when it is normally used in proceedings it means that out of a cohort of cases one stands out because of some exceptional peculiarity. However, that cannot be the meaning of what we see in Clause 9, because an exceptional case determination is defined in subsection (3), which says:

“For the purposes of subsection (2), an exceptional case determination is a determination”,

and then describes what type of determination it is: first,

“that it is necessary to make the services available … because failure to do so would be a breach of … the individual’s Convention rights … or … enforceable EU rights, or”,

secondly,

“that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.

That is it; that is what exceptional case determination is.

My mind immediately goes to the sort of issues that we discussed earlier in relation to appeals, from the First-tier Tribunal to the Upper Tribunal and beyond, where a litigant in person is seeking to cope with a government legal team that appears on the other side to argue what must necessarily be issues of law, otherwise it would not be up in that area. That immediately rings the bell of equality of arms in a very serious way, and I cannot imagine that any of these cases would not fall within the definition of an exceptional case determination as set out in Clause 9(3), which I have already read out. In one sense it is a very narrow definition, but in another it introduces all the rights that are available under the European convention. Yet there must be other cases where the European convention is not engaged.

The purpose of my amendment, and I note amendments in the name of other noble Lords, is to widen the ambit of an exceptional case determination to the point where the director of legal aid services considers,

“that it is in the interest of justice generally”.

I appreciate that is a very wide definition, but unless the director of legal aid services has a wide discretion, how can he cope with the multifarious applications that will be made to him on the basis of their being exceptional cases? I am not going to spell out any, because these things come out of the woodwork. All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved or because of the public points that have been made, and so on. One can envisage all sorts of circumstances. Although the words here seem modest, they are asking for a wide discretion, and that is the purpose of my amendment. I beg to move.

[Lord Avebury]

My Lords, when we were discussing the first amendment this afternoon it was said that some immigration cases are determined on straightforward questions of fact. However, what we did after that Division, unfortunately, was to lump them all together so that the routine immigration matters that were referred to in the Minister’s letter, which was quoted by the noble Lord, Lord Pannick, are being integrated with issues of extreme legal complexity which, as we have heard, go all the way up to the Supreme Court. We heard the noble and learned Lord, Lord Woolf, say that a sizeable proportion of the Supreme Court’s diet was immigration cases. It will be interesting to hear from my noble and learned friend how the person who starts off as a litigant in person and gets part way up the ladder towards the Supreme Court would be able to gain representation when it became appreciated that the case was one of extreme legal complexity; or is this litigant supposed to go all the way up to the Supreme Court dealing with the case himself?

The intention of the amendment is to provide scope for exceptional funding to be made available in these complex immigration cases. In such cases, the individual will be without legal representation by reason of the restriction on non-legal professional provision of immigration advice and services, the individual being unable to afford legal representation and the general exclusion of immigration from the scope of legal aid. The Bill removes most non-asylum immigration matters from the scope of legal aid. One of the main arguments used by the Government is that legal advice is not needed in a whole variety of cases, of which immigration cases are one example, and that instead those currently receiving advice and representation under legal aid will be able to look to general advice agencies, particularly the non-for-profit sector, for assistance, as we have heard. This rationale fails to address the provisions dealing with immigration advice and services in Part 5 of the Immigration and Asylum Act 1999, which say that only a person who is registered under the regulatory scheme run by the office of the Immigration Services Commissioner can provide those services. That scheme includes some not-for-profit organisations but very few of them are permitted to undertake work in key areas of immigration law. None is permitted to do judicial review work. Only those at the higher levels of the scheme, levels 2 and 3, are permitted to work on family reunions, appeals—representation at which is restricted to the highest level, level 3—removals and deportations, applications outside the rules, and illegal entrants and overstayers.

Level 1 advisers, who constitute the vast majority of the not-for-profit organisations, are excluded altogether from these key areas for which legal aid is currently provided but will not be provided in future, save where an asylum claim is being pursued. Therefore, the suggestion that general advisers can fill the gap left by the withdrawal of legal aid simply does not work in immigration cases because of the regulatory scheme. Yet the scheme is an important safeguard against the exploitation of migrants by unqualified persons who offer themselves as immigration advisers, of which there used to be hundreds. The scheme was introduced with support across the political parties in response to serious concerns about such exploitation.

I shall give a couple of examples of the sort of immigration cases that I envisage being far too complex for the individual to cope with. First, there is the case of a British overseas citizen of Malaysian origin, about whose plight my right honourable friend Simon Hughes and I had an interview, along with representatives of the Malaysian BOC community, with the Minister, Damian Green, a couple of weeks ago. It would not be necessary to trouble the Minister with cases that did not warrant representation by legal professionals.

My second example is of a Kuwaiti Bidoon who has indefinite leave to remain in this country but whose wife and children, having left Kuwait clandestinely, found themselves in Damascus, where there was no provision for them to establish their identity as relatives of the head of the family in England. They have been stranded there for months, separated from him, because of the difficulty in getting permission to come here. Do they not need legal aid? Is it really the case that a family reunion of this sort can be dealt with by non-professionals, or even with the assistance of Members of Parliament? As I said, we expect Members of Parliament to be deluged with requests for advice and help in such cases.

22:00

When this matter was raised in another place on Report by my right honourable friend the Member for Bermondsey and Old Southwark, the Parliamentary Secretary at the Ministry of Justice said:

“I certainly agree with my right hon. Friend that some immigration cases are complex, and I think that the point that he has raised is one for me to look at after today. I will do so, and I will come back to him on that”.—[Official Report, Commons, 31/10/11; col. 651.]

The fact is that the statutory appeals scheme is highly complex. Part 5 of the Nationality, Immigration and Asylum Act 2002 contains an intricate set of provisions to determine whether a person may appeal, on what grounds, and what evidence may be relied on in support of the appeal. There are numerous exclusions and limitations within this framework. The UKBA has not infrequently issued notices giving incorrect advice on the individual’s appeal rights.

The Administrative Justice and Tribunals Council says that immigration is an area of extraordinary complexity, as we heard earlier. We heard also that Lord Justice Jackson said of an issue affecting the situation of persons liable to removal that,

“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions”.

I am not aware that the Minister did come back to my right honourable friend on the point in question. However, in Committee at this end, my noble and learned friend Lord Wallace of Tankerness said:

“The position in the Bill is that exceptional funding should be granted only where it is required by law; that is that denying legal aid would risk a breach of an individual’s rights under EU law or the ECHR. Case law has been consistent: that immigration cases do not … involve such a determination and, as such, exceptional funding would not be available”.—[Official Report, 18/1/12; col. 668.]

Lord Justice Longmore’s stated that he was,

“left perplexed and concerned how any individual whom the Rules affect … can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done”.

It follows, therefore, that without legal assistance justice will not be done, and that the right way to reduce costs would be to simplify the rules and procedures rather than effectively depriving these people of access to justice.

The UKBA website section on staff guidance, instructions and country information contains 20 distinct sets of guidance, many of which are themselves broken down into voluminous chapters and sections, making a vast array of immigration policy and instructions which are all subject to frequent revision and restructure. In each of the past two years there have been eight changes to the Immigration Rules. Thus, on the analysis of Mr Djanogly, quoted earlier, immigrants are doubly prejudiced. They are to be excluded entirely from exceptional funding, so that even where there is a real need for legal advice and representation the director of legal aid casework cannot make it available. Secondly, by reason of the much needed regulation, those who cannot afford to pay face being excluded from any legitimate advice service.

I can understand the Government’s position as described by my noble and learned friend the Lord Advocate, if, indeed, the alternative sources of advice that are available in every other type of case were available to immigrants with complex cases such as the family reunion case cited by my right honourable friend the Member for Bermondsey and Old Southwark, and I could give many other examples from my own correspondence with the Immigration Minister, as I am sure he would confirm.

One side effect of totally excluding complex immigration cases from legal aid, as I have said, is that honourable Members and those of us in this House who take an interest in immigration cases will be deluged with a flood of letters and e-mails from those who desperately need help and cannot get it anywhere else. I dread to think of the additional burden on the staff dealing with correspondence on behalf of the Minister. As in other areas of this Bill where access to legal aid is being terminated, the savings the Government hope to achieve at the expense of the poor and vulnerable are counterbalanced by increases in spending elsewhere, which they have not bothered to quantify. I wonder also whether in some of these complex immigration cases—I think of family reunion cases in particular—the denial of legal aid might be held to constitute a breach of Article 8, the right to respect for family life, coupled also with Article 14 on freedom from discrimination. I ask my noble and learned friend whether he has thought of the likelihood of such cases being brought against the Government in respect of the denial of legal aid in these cases, and how would they deal with them.

All these problems could be avoided if the Government would accept my amendment, as I hope my noble and learned friend is about to do.

[Baroness Lister of Burtersett]

My Lords, I support the amendment, as well as Amendments 93A and 94, particularly in relation to immigration law. I do not claim any expertise whatever in immigration law, but I am concerned by many representations that I have received, particularly as regards children and women who will be affected by denial of exceptional cases support. As the noble Lord, Lord Avebury, has said, and as was emphasised by noble Lords from across the House earlier, this is an extraordinarily complex area of law. It is unrealistic to expect vulnerable immigrants to represent themselves without any legal assistance.

I am particularly concerned about the suggestion that children should turn to their social workers for legal advice and assistance. The noble Lord, Lord Newton of Braintree, gave that idea pretty short shrift earlier. He asked whether social workers would receive training. I do not recall the Minister answering that question, so perhaps the noble and learned Lord can do so in his response. I have been written to by Refugee Youth about this matter. It says:

“Social workers have played an important role in many of our lives, but social workers are not immigration lawyers and are not experts in the immigration process and we have had mixed experiences of social workers”.

Refugee Youth also says:

“We want social workers to do what they are trained for and best at in supporting children, not take on roles that they are not trained or competent for. The Government’s proposal simply stands to increase pressures on social workers, and on their sometimes difficult relationship with the children they support”.

That is a very fair point. The Immigration Law Practitioners’ Association states that, “any inevitable failing” in advice provided,

“can be expected to have serious ramifications for trust and confidence as between child and social worker”.

I taught social workers when I was at Bradford University, and the idea that these students would go out and then act as poor persons’ immigration lawyers is frankly laughable. Social workers are on their knees trying to fulfil their statutory responsibilities and should not become second-rate immigration lawyers.

I am also concerned about the implications for women. Rights of Women has written to me, especially about women who have experienced gender-based violence—other than in certain domestic violence cases that will still be in scope—whose immigration status places them at great risk of harm, and about those who may have been subject to trafficking. I know that the noble and learned Lord has said that he will be looking at this matter again before Third Reading, and I hope that at least that issue will be dealt with. Regardless of the complexity of a case, it will not be covered by exceptional cases funding.

It is therefore unbelievable that the Government can expect two vulnerable groups to navigate this complex area of law without those groups being covered by even the safety net of the exceptional cases scheme. I hope that the Minister will look kindly on these amendments and rethink the Government’s position on this issue. I cannot believe that it will cost very much money to extend exceptional circumstances funding to cover these groups.

[Lord Judd]

My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.

What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.

Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.

I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.

[Baroness Hamwee]

My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned—although I suspect that the noble Lord, Lord Bach, may—concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.

There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.

I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to “significant wider public interest”; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to “in the interests of justice”. The terms “overwhelming importance to the client” and “wider public interest” are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.

We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of people—victims of torture. Although not large in number, both these groups have substantial needs. All this may benefit from some detailed discussion outside the Chamber but I think that it is appropriate to raise it today. My question is about the extent of the change from the current arrangements.

22:15

[Lord Bach]

My Lords, it is absurd that we are debating such a crucial set of amendments as this at 10.15 in the evening. This is a crucial part of the Bill and the House should be much fuller. However, we have heard some very impressive speeches from around the House on Clause 9, which is a key clause in the Bill and, I imagine, a key clause in the Government’s thinking on the structure of Part1 of the Bill.

We had a substantial debate at an earlier hour in Committee on these amendments, with the exception of Amendment 93A in the name of the noble Lord, Lord Avebury. However, the amendment of the noble Lord, Lord Thomas, and my amendments were debated. There was a widespread feeling around the House on that occasion, as there is tonight in a much emptier House, that Clause 9 is much too narrow in scope. It does not allow for the flexibility that is crucial if exceptional cases are to have any real meaning. In our view, this is such a narrow clause and it will be so difficult to put into practice that a great deal will be left to the director to decide. At the moment, we do not know under what rules the director will have to make his decisions, and it is a shame that we do not.

We still greatly support the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. It seems to us a very sensible amendment and one that, if the Government do not intend what my noble friend Lord Judd was implying, they should accept. However, they do not accept it in those terms. The noble and learned Lord the Minister listened carefully when the noble and learned Lord, Lord Mackay of Clashfern, said in Committee:

“My second point is that, although ‘the interests of justice’ is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase ‘the interests of justice’”.

In response, the noble and learned Lord said:

“I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm.”

That is the phrase that the noble and learned Lord, Lord Wallace, used. He continued, with his usual careful caution:

“I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about”.—[Official Report, 24/1/12; col. 989.]

This is the perfect opportunity for the noble and learned Lord, Lord Wallace of Tankerness, to tell us whether he did think about it and what his conclusion was. It is an attractive offer. It is based on the original amendment of the noble Lord, Lord Thomas, and on what the noble and learned Lord, Lord Mackay of Clashfern, had to say about it. I shall be interested to know his view on that. Amendment 93A fits in very well with the debate that we had earlier this evening, in which the Government found few friends around the House as regards their argument. I suspect that there are very few friends in the House at present as regards what the noble and learned Lord may say about Amendment 93A. We back it.

The first of my amendments is exactly the same as the one that I moved last time. It is based on a draft amendment by the Law Centres Federation. It is not necessary for me to praise the law centres movement yet again in the House; the House has a very strong feeling that it has done a fantastic job over the past 40 or 50 years. When it puts forward a draft amendment to a Bill like this, the very least that we can expect is that the Government take it seriously. It would have different criteria, having regard to the previous circumstances of the case, including: the client’s vulnerability; the client's capacity to represent himself or herself; the client's health, including mental health issues; the actual availability of alternative sources of advice and assistance; the fact that the client is under the age of 18; or it is otherwise in the interests of justice. So we come back to the phrase in Amendment 93 in the name of the noble Lord, Lord Thomas of Gresford.

The noble and learned Lord, Lord Wallace of Tankerness, rejected that amendment last time. I dare say he will do so again in a few minutes. I still wonder why, when it seems to cover so many of the crucial things that are of importance for any clause that deals with exceptional cases.

My Amendments 95 and 96 deal with the position of chief coroner, who barely survived, but survived eventually, even though it was the Government’s intention to get rid of him before he started his job. It was good that the Government were persuaded to keep him. On Clause 9(4)(b), where the director has made a wider public interest determination in relation to the individual and the inquest, it would be helpful, rather than harmful or delaying, for the director to consult with the chief coroner. We still think that is a good idea and we cannot see why the Government reject it. These are important amendments and I know that they will be treated seriously by the noble and learned Lord, but to keep Clause 9 as narrowly based as it is on the ECHR and the European Court of Justice rulings is, in our view, much too restrictive and will in the end cause a great deal of concern for clients who really ought to get some legal aid under any exceptional provision but who will be barred from doing so because of the narrowness of the definition of Clause 9.

[Lord Wallace of Tankerness]

My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.

I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.

It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.

I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.

My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.

Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.

The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.

Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.

In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.

Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.

My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.

Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.

Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.

As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.

The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.

I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.

Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.

The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.

The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.

We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.

We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.

I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,

“reasonable costs incurred by any person making a successful funding application under this section”.

Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.

I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.

[Baroness Lister of Burtersett]

My Lords, on unaccompanied children, I accept the point that social workers will not be expected to provide formal legal advice, but in the other place the Parliamentary Under-Secretary of State for Justice said that they could turn to law centres, pro bono representation or the Refugee Council for such formal legal advice. As I am sure the Minister knows, the Refugee Council and the Law Centres Federation have written to the Parliamentary Under-Secretary of State to say that it is simply impossible for that gap to be filled in that way and to point out that the Refugee Council does not provide that kind of support. Will the Minister take that on board? I still do not know where these children will get that legal advice if they need it.

[Lord Wallace of Tankerness]

The noble Baroness acknowledged that I referred to some of the issues about unaccompanied children, but I will certainly draw her remarks and the point that she made about the Refugee Council to the attention of my honourable friend the Parliamentary Under-Secretary of State.

[Lord Thomas of Gresford]

My Lords, one of the comforting sayings at the Bar, which I have found over 50 years to be absolutely true, is that when one door shuts another opens. It seems to me that, if he has heard of that saying north of the border, the noble and learned Lord will be aware that he has set out in his reply the basis of innumerable applications for judicial review of the decisions made by the director of legal aid services. It is impossible for there not to be a challenge to the statement made by the noble and learned Lord because almost anything can be brought within the ECHR rules, generally speaking, if you really try. We have heard reference to Articles 2, 6, 7, 8 and 14 tonight, which gives us five articles to play with.

I can assure the noble and learned Lord that the legal profession will look forward to testing his description and the ambit of the clause for a considerable period—case after case. It would be so much simpler if a broad discretion were given to the director of legal aid services, coupled with guidance that we could look at, in order that there would be some ambit to it. If the formulation of the noble and learned Lord, Lord Mackay, which was found to be so seductive last time, were adopted with guidance, that could prevent an awful lot of future litigation. With that very pleasant prospect in mind, I beg leave to withdraw my amendment.

Amendment 93 withdrawn.

Amendments 93A to 97 not moved.

Clause 10 : Qualifying for civil legal aid

Amendment 98

Moved by

[Lord Wallace of Tankerness]

98: Clause 10, page 7, line 29, leave out from “which” to “could” and insert “more than one form of civil legal service”

[Lord Wallace of Tankerness]

My Lords, this is another minor and technical amendment designed to correct a drafting inconsistency between Clause 7 and Clause 10. Clause 10(4) is intended to cover the possibility of a different level of service being appropriate to a matter that falls within the scope of Part 1 of Schedule 1—for example, legal help or legal representation. In Clause 10(4), we currently use the phrase “description of service” when our intention is simply to refer to “forms” of service as we have in Clause 7(2). The amendment simply standardises the terminology between Clause 7 and Clause 10(4). I beg to move.

Amendment 98 agreed.

Amendment 99

Moved by

[Lord Wallace of Tankerness]

99: Clause 10, page 7, line 30, after second “the” insert “form of”

Amendment 99 agreed.

22:45

Clause 11 : Determinations

Amendment 100

Moved by

[Lord Beecham]

100: Clause 11, page 8, line 25, leave out “may” and insert “must”

[Lord Beecham]

My Lords, this is a straightforward amendment that deals with the question of creating a right of appeal to a tribunal or court from a decision by the director. It seems highly undesirable that there is only the possibility in the Bill of regulations being provided to allow for such an appeal, and clearly there ought to be a proper route to appeal. The amendment requires that regulations should be brought into being instead of simply laying down an option for them to be brought forward. I hope that the noble and learned Lord will accept that it is desirable to have that avenue prescribed and subject to regulations from the outset rather than leaving it open. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Beecham, has indicated, the amendment would require regulations to be made under Clause 11 to make provision for appeals to a court, tribunal or other person against determinations made by the director under Clauses 8 and 9, and against the withdrawal of such determinations. I can reassure the House that the Government’s intention is to continue with the existing effective appeal procedures that are currently used by the LSC. First, an internal review on all determinations on civil legal aid will be available. This is required by Clause 11(5). Secondly, we are retaining the current system of independent lawyers, known as independent funding adjudicators, who volunteer to carry out independent reviews of funding decisions in in-scope civil and family representation cases. Clause 11 already allows us to make regulations to set out those appeal processes in secondary legislation, as they are set out currently.

The existing system, which deals with over 11,000 reviews and 3,500 appeals to independent funding adjudicators each year, is both efficient and effective and costs an estimated £60,000 per year to administer. I am not sure that he did, but it may be that the noble Lord envisions instead a tribunal to review these appeals. The review by Sir Ian Magee initiated by the previous Administration into the governance of legal aid looked at the option of directing all legal aid appeals to a tribunal and concluded that this would cost up to £1 million per year to administer. We do not believe it would be sensible to replace a system that works well with an unknown system at possibly 15 times the current cost.

This amendment would also require an appeal in cases covered by Clause 9. Again, we intend to retain the existing system under which, although there will be an internal review available in accordance with Clause 11(5), there will be no appeal to an independent funding adjudicator where applicants remain dissatisfied. I do not agree that these cases should attract a right of appeal to an IFA. It would not be appropriate to refer exceptional funding decisions to an IFA. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be amenable to judicial review. I think my noble friend Lord Thomas of Gresford confirmed that in his response to an earlier debate. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, if there is no intention at any stage to provide for appeals to a court, tribunal or other person against such determinations, why is the option included in the first place? Either the Government intend at some point for some categories of case to be dealt with in that way or they do not. If they do, they should make regulations. If they do not, subsection (6) is otiose. However, I am making no progress with the noble and learned Lord, and at this hour I do not propose to take the matter further. I beg leave to withdraw the amendment.

Amendment 100 withdrawn.

Amendment 101 not moved.

Amendment 101A

Moved by

[Lord Phillips of Sudbury]

101A: After Clause 11, insert the following new Clause—
“Report reviewing claims for clinical negligence
(1) In discharging his or her functions under section 1(4) above, the Lord Chancellor shall have regard to the provisions of this section.
(2) The Lord Chancellor may appoint an independent person to review claims for clinical negligence and means of improving the modes, procedures, financing and outcomes relating to the same as he or she shall specify.
(3) Such a review may in particular address the accessibility, cost, effectiveness, openness, fairness, proportionality and speediness of such claims.
(4) After the reviewer must compile a report of his or her conclusions.
(5) As part of those conclusions the reviewer may propose such scheme or schemes (voluntary or otherwise) as he or she shall see fit.
(6) In this section “claims” shall mean claims and complaints made by patients receiving services provided or commissioned in England in respect of a liability in tort or contract owed in respect of personal injury or loss arising in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or in the care or treatment of any patient of an NHS body, or of a primary care or independent provider.
(7) The Lord Chancellor must lay before Parliament a copy of a report compiled under subsection (4).”

[Lord Phillips of Sudbury]

My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.

The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts’ reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person’s life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called “after the event” insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose that that is why one sees the sort of extraordinary cases of which I gave an example in Committee, given to me by the Welsh NHS legal department, where the award of damages was £4,500. The cost of the insurance, of the medical reports and of the lawyers came, believe it or not, to £98,000. That may not be typical, but this is an area of notorious expense, complexity and long-windedness.

The noble Lord, Lord Faulks, who is an expert practitioner in this field, dropped me a note earlier in the day in which he said:

“Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence … When legal aid was removed from personal injuries generally”—

that was, I think, 10 or more years ago; it might even have been in the Access to Justice Act 1999—

“it remained for clinical negligence—in recognition of its especial challenges”.

That is absolutely the point.

I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power—we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.

I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth—there are 270 pages of primary legislation with probably as much again to come in secondary legislation—we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.

This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.

That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.

[Lord Bach]

My Lords, we are grateful that the noble Lord, Lord Phillips of Sudbury, and his co-signatories have taken note of what my noble friend said last time. We support the amendment.

[Lord Wallace of Tankerness]

My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time.

The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems.

I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature.

23:00

According to the NHS Litigation Authority data for 2010-11, only 18 per cent of clinical negligence claims are funded by legal aid, so it would seem somewhat disproportionate to require the Lord Chancellor, in recognition of the withdrawal of the limited legal aid funding in this area, to monitor and evaluate all civil litigation in an entire area of law. That said, I can assure the House and my noble friend that the operation of the civil justice system in respect of clinical negligence is firmly in the department's sights, and we are working closely with the NHS Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. My noble friend mentioned the Welsh redress scheme that was spoken to in the debates that we had on clinical negligence by my noble friend Lord Thomas of Gresford. It is important that the department concerns itself with such considerations as part of its general policy responsibilities. Given the attention that it has received in the context of this Bill and in this House, it is clearly something on which the department has already thought long and hard. As I have indicated, we will set up pilots for dealing with low-value clinical negligence cases, which cover many of the cases that are brought forward. It is right that we do so as part of our general policy responsibilities.

The amendment could lead to a burden or an expectation that we are unable to meet, and I therefore urge my noble friend to withdraw it.

[Lord Phillips of Sudbury]

My Lords, to say that I am disappointed in that response is, I am afraid, an inadequate estimate. The whole point of amending the resolution from last time was to make this discretionary. For the Government to say that they do not even want to be under an expectation of having such a wide review seems wayward. I also find it wayward that the amendment is rejected on grounds of cost. It is to save massive waste in this area that this amendment is put forward. I will withdraw the amendment, as there are only a dozen of us here, but I do so with disappointment.

Amendment 101A withdrawn.

Clause 12 : Advice and assistance for individuals in custody

Amendment 102

Moved by

[Lord Bach]

102: Clause 12, page 8, line 35, leave out subsection (2)

[Lord Bach]

I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned—and I referred to this in passing in Committee—by the expression to be found in Clause 12(2):

“The Director must make a determination under this section having regard, in particular, to the interests of justice”.

I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:

“Initial advice and initial assistance are to be available under this Part to an individual who is arrested and held in custody at a police station or other premises”.

After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words “the interests of justice” add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?

The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, “Don’t worry about it. It doesn’t actually mean anything in this context”. I put down my amendment so that the Minister can explain why the phrase “the interests of justice” has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that “the interests of justice” meant that it was not necessary for advice and assistance to be given.

Without any doubt it is the view of the House—and, I suspect, that of many outside—that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.

[Lord McNally]

My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans—I repeat, no plans—to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance—

[Lord Bach]

Was that the incredibly persuasive speech that lasted 11 lines before the Minister interrupted his noble friend? It is very good to be so persuasive in 11 lines.

[Lord McNally]

I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12—

[Lord Beecham]

Would the Minister acknowledge that it does not necessarily follow that he has to speak for 17 or 25 minutes to convince us either, especially at this time of night?

[Lord McNally]

I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.

However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a “sufficient benefit” test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.

Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.

I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee’s recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.

I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.

[Lord Bach]

My Lords, given the time of night, I will obviously withdraw the amendment. I thank the Minister for his response but I cannot say that I am totally satisfied. My ears started to prick up when he said that in general it was considered that it would be in the interests of justice. My question to the Government is: when will it not be in the interests of justice for someone in custody at a police station or other premises to have initial advice or assistance? Are there any examples? I do not ask the noble Lord to answer now but it would help the House if he could write with some examples of the kind of situation in which it would not be in the interests of justice for someone in custody to receive this assistance and advice. It is the fact that there may be occasions when it is not considered by the director to be in the interests of justice that worries me. I would be grateful if the noble Lord could find the time to write to me with some examples. I think other Members of the House would be grateful for them as well.

23:15

[Lord McNally]

My Lords, I think it would worry me as well. I will reflect on what the noble Lord has said and write to him on the specific point that seems to be worrying him.

[Lord Bach]

I am very grateful to the noble Lord. On that basis, I beg leave to withdraw the amendment.

Amendment 102 withdrawn.

Amendments 103 and 104

Moved by

[Lord McNally]

103: Clause 12, page 8, line 37, leave out subsection (3)

104: Clause 12, page 9, line 26, at end insert “, including assistance in the form of advocacy”

Amendments 103 and 104 agreed.

Clause 20 : Financial resources

Amendment 105 had been withdrawn from the Marshalled List.

Amendment 105A

Moved by

[Lord Thomas of Gresford]

105A: Clause 20, page 15, line 14, at end insert—
“( ) For the purposes of subsection (1), “financial resources” shall include all the realisable property of the individual subject to a restraint order under section 41 of the Proceeds of Crime Act 2002 (restraint orders).
( ) The Proceeds of Crime Act 2002 is amended as follows.
( ) In section 41, omit subsections (4) and (5) and substitute—
“(4)(a) A restraint order may be made subject to an exception for the provision of reasonable legal expenses in criminal proceedings in the Crown Court, whether or not they relate to an offence mentioned in Section 40(2) or (3), subject to conditions—(i) an application for the release of such expenses shall be made by the alleged offender to the Court where the offence for which they are required is to be tried,(ii) notice shall be given of the application to the prosecutor or the Director, (iii) the application shall be supported by a costs budget verified by the solicitor to the alleged offender,(iv) the budget shall be calculated on the basis of current legal aid rates,(b) The Court shall not make an order prejudicial to a co-defendant.(5) The Court shall supervise the course of an order made under subsection (4) above and may from time to time review the order on the application by the prosecutor or the Director, or by or on behalf of the alleged offender.””

[Lord Thomas of Gresford]

My Lords, Amendment 105A is in substitution for Amendment 105, which was drafted in identical terms to the amendment that I moved in Committee. As your Lordships will recall, my concern is that a person who has had his assets frozen should have those assets counted as financial resources when his application for legal aid is considered. At this time of night I do not think that a large exposition of that concept is needed, but I point to the differences between this amendment and the amendment moved in Committee. It was suggested by the Minister that you cannot easily unfreeze the assets of a person who is a criminal. I decided that I would do my best to show how simply it could be done by including in the Bill the conditions that could be applied. Amendment 105A states:

“A restraint order may be made subject to an exception for the provision of reasonable legal expenses in criminal proceedings in the Crown Court”—

I am not referring to the magistrates’ court—whether or not they relate to the offence for which the person has been arrested, subject to certain conditions. Those conditions are an application to be made to the court,

“where the offence for which they are required is to be tried”.

Further,

“notice shall be given of the application to the prosecutor or the Director”—

of Public Prosecutions—

“the application shall be supported by a costs budget verified by the solicitor to the alleged offender”.

Further,

“the budget shall be calculated on the basis of current legal aid rates”.

We are not suggesting that frozen assets should be released so that a locked-up defendant’s lawyer can drive around in a Rolls-Royce. He should receive remuneration as if it was a legal aid case but it would not come out of public funds—it would come out of the restrained assets. If such an order were made, it is very important that it should not be prejudicial to a co-defendant. One would not wish to see a defendant gaining an advantage by employing the leading Silk in the field of fraud in which he may have been engaged whereas his co-defendant was not able to do so.

Finally, the amendment states:

“The court shall supervise the course of an order … and may from time to time review the order on the application by the prosecutor or the Director, or by or on behalf of the alleged offender”.

It seems to me that this is a straightforward, simple code that could be introduced to permit the frozen assets of an alleged offender to be unfrozen for the purposes of his defence. I hope that the Government will accept this or something like it. I beg to move.

[Lord Bach]

My Lords, we give our total support to the amendment moved by the noble Lord, Lord Thomas of Gresford. The principle behind it was set out clearly in Committee. That principle remains. It has not been answered satisfactorily. The Government are rightly looking for ways of saving legal aid funds. This is an area of criminal legal aid where considerable savings could be made. The Government should take advantage of this amendment and make sure something like it happens very soon.

[Lord McNally]

I cannot remember whether the noble Lord was a Minister in the department responsible in 2002, because it was the then Government who decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence.

[Lord Bach]

My Lords, I have déjà vu. We had this same exchange in Committee and I repeat what I think I said then: no, I was not a part of whatever department it was in 2002. I hope that the noble Lord will take my word for it this time.

[Lord McNally]

Yes, but there is some kind of responsibility for past acts. It is all right for the noble Lord to get to the Dispatch Box and say what a wonderful idea this is, which he has been doing throughout the Bill as regards £20 million here, £18 million there and £4 million there. He now of course wants to change something that the previous Government did.

[Lord Bach]

Again, I have déjà vu. I think I ate enough sackcloth and ashes, or whatever the expression is, on the previous occasion about what my role may or may not have been towards the end of the previous Government. We do not need to go through that again, unless the noble Lord insists. I should like to know why he does not accept the amendment.

[Lord McNally]

Excellent; that was good for the record. Amendment 105A would amend the Proceeds of Crime Act 2002 to allow courts to release restrained assets to fund legal expenses in criminal proceedings. POCA currently prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates.

The Government recognise that there is a public perception that rich people are being given free legal aid because their assets are restrained. There are good policy reasons behind the current regime, but I can assure noble Lords that my department is currently working with the Home Office and the Attorney-General’s Office to explore options that might allow the Government to recover legal aid costs wherever possible.

My noble friend—and this I welcome—has stimulated activity and cross-departmental examination of this issue in a constructive way. I cannot accept the amendment tonight, and I am not likely to within the context of the Bill. However, he can claim credit for stimulating active working with my department, the Home Office and the Attorney-General’s Office, and we will see where this initiative takes us. In the mean time, I hope that my noble friend will withdraw his amendment.

[Lord Thomas of Gresford]

My Lords, I am very grateful to my noble friend for saying that, and I am pleased that there are investigations. That is nothing to do with me but perhaps more to do with a person who was named in the Evening Standard the week before last as having received £5 million in legal aid. When one considers the sort of concessions that we and certainly the Opposition have been looking for for civil legal aid, providing £5 million to one person in a criminal case, when he is living in his wife’s seven-bedroom Mayfair mansion, surely stimulates the Ministry of Justice far more than anything that I might say. I look forward to the work that the noble Lord referred to and, for the moment, I beg leave to withdraw the amendment.

Amendment 105A withdrawn.

Amendment 106

Moved by

[Lord McNally]

106: Clause 20, page 15, line 22, leave out “The regulations” and insert “Regulations under subsection (3)”

[Lord McNally]

My Lords, it takes a certain amount of, as the noble Lord, Lord Beecham, said, chutzpah—although I do not know whether that word is allowed in Hansard—to ask the House at any time to accept a grouping of 14 government amendments, but I can absolutely assure the House that I have written to noble Lords and that these are technical amendments. I recommend them to the House. I beg to move.

Amendment 106 agreed.

Clause 22: Payment for services

Amendment 107

Moved by

[Lord McNally]

107: Clause 22, page 17, line 27, leave out “for” and insert “to”

Amendment 107 agreed.

Amendment 108

Moved by

[Lord Thomas of Gresford]

108: Clause 22, page 17, line 41, at end insert “save that an individual shall not be required to pay a percentage of the damages he receives for the purposes of a supplementary legal aid scheme”

[Lord Thomas of Gresford]

My Lords, I move the amendment in a probing manner. I am concerned about a statement made by the noble Lord, Lord McNally, in Committee that involves setting up a supplementary legal aid scheme with a proposed deduction of 25 per cent from the damages of people who are supported by legal aid.

So much time has been spent in the course of the Bill in fighting to get areas of litigation back into scope that it is ironic that if those efforts were to succeed and damages awarded in any particular case, they would be immediately subject to a 25 per cent deduction for the purposes of setting up a fund from which other people would receive legal aid. It is a tax on their damages.

The noble Lord, Lord McNally, said in Committee that that was in order to make it no more attractive to have legal aid than to have damages subject to a success fee payable by a successful claimant limited to 25 per cent of his damages to date of trial. There is a difference. The whole purpose of changing the success fee, the burden of payment in conditional fee agreements, from the defendant to the claimant, and for it to be a charge on his damages, was so that there would be competition between solicitors for the business of the claimant at the outset. A solicitor might say, “There will be no success fee payable with me”, or, “My success fee will be limited to 12.5 per cent of the damages, not 25 per cent”. That is a better position than that of a legally aided person, who will have a whole 25 per cent taken out of his damages in any event. When is the supplementary legal aid scheme likely to come into being? I know that there was similar provision in the Access to Justice Act 1999, but under the previous Government it was never brought into effect.

The other matter that concerns me is that the provision could be brought in by secondary legislation under the negative procedure. That would mean that it would be subject to no or very little debate in Parliament and imposed on us. My second concern is to ensure that if such a scheme is to be introduced in future, it should properly be brought under the affirmative procedure so that we have a chance to debate and consider it before it comes before the House for approval.

Those are the reasons why I have tabled the amendment, and I await enlightenment. I beg to move.

[Lord Beecham]

My Lords, this is another case of déjà vu. In Committee, I congratulated the noble Lord, Lord Thomas, on his amendment. He was absolutely right then; he is absolutely right tonight. I hope that, having heard the noble Lord again, the Minister will acknowledge that he has made a very powerful case on both limbs—the principle and the procedure to which his amendments are addressed. I hope that the Minister can give a satisfactory reply that will not lead to those deductions being made, still less by the defective procedure, which, as the noble Lord has amply demonstrated, would be quite inappropriate.

23:30

[Lord McNally]

Yet again the Opposition, with a completely straight face, agree with my noble friend, although, as the noble Lord himself pointed out, we are making use of a provision in the Access to Justice Act 1999 which was brought in by the previous Government. He is now against it, as he was against the previous one. It seems that things are only good ideas when the Opposition are in government.

[Lord Beecham]

My noble friend will confirm that from time to time I, in particular, was extremely critical of some of the actions taken by the previous Government in the field of justice. I am not bound by a 1999 Act at all.

[Lord McNally]

Is another noble Lord going to have a go? Is there to be more sackcloth and ashes?

[Lord Bach]

Not at all. It is late at night, so I think we can forgive the Minister what he considers to be his bit of fun. However, Governments do make mistakes from time to time and people do change their minds. Even the noble Lord—never mind his party—has been known to change his mind on a few occasions.

[Lord McNally]

Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.

As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.

[Lord Thomas of Gresford]

It is negative in the Bill. My amendment would make it affirmative.

[Lord McNally]

It will remain negative.

[Lord Thomas of Gresford]

That was a quick decision, if I may respectfully say so.

[Lord McNally]

The noble Lord did say that we were allowed to change our mind.

The power at subsection (3) is not new. Section 10(2)(c) of the Access to Justice Act 1999 explicitly allows for regulations to provide that a legally aided person can make a payment exceeding the cost of the services received. When we consulted on the legal aid reforms, we specifically consulted on introducing such a supplementary legal aid scheme.

As well as creating an additional source of funding for civil legal aid, the supplementary legal aid scheme will address the interrelationship between legal aid and the proposed reforms to the costs of civil litigation put forward by Lord Justice Jackson, which are reflected in Part 2 of the Bill. We want to ensure that as far possible the recovery level of damages by the supplementary legal aid scheme complements the Jackson reforms so that conditional fee agreements are no less attractive than legal aid. The recovery level of 25 per cent of all damages, other than those for future care and loss, is therefore based on the success fee cap for a conditional fee agreement in a personal injury case.

Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages, such as damages for pain and suffering and loss of amenity in tort cases. This will help claimants to pay their conditional fee agreement success fee or a 25 per cent portion of the relevant damages, if legally aided.

There has been a suggestion that it is unfair for successful claimants to be asked to help to underwrite the cost of the legal aid scheme in the way proposed. We do not see it as unfair. A claimant who wishes to proceed in a civil action with the aid of public funding is asking the taxpayer to take a risk on his or her behalf. Where that risk bears fruit in the form of what may be a very substantial sum of money, it is perfectly reasonable for a share of that to go back into the public pot so that the continued taking of such risks can more easily be sustained.

In sum, the power to make a supplementary legal aid scheme has now been sought by successive Governments. It has previously been approved by Parliament. Financial constraints are now such that we believe that it would be wrong not to exercise it in the way that we have clearly proposed and consulted on. Omitting to do so would also be out of step with the wider reforms to civil litigation that we are making. In light of my explanation, I hope that the noble Lord will agree to withdraw the amendment.

I now turn to Amendment 130, which would make any regulations made under Clause 22 subject to the affirmative resolution procedure, necessitating a debate and approval of a resolution by both Houses before the regulations could be made. We believe that this amendment is specifically related to Clause 22(3), although it goes much wider. As I have explained, we intend to use the power in Clause 22(3) to make regulations to establish a supplementary legal aid scheme. We believe that this amendment is aimed at ensuring that the details of the supplementary legal aid scheme are subject to the affirmative resolution procedure. An equivalent regulation-making power is contained at Section 10(2)(c) of the Access to Justice Act 1999. That power is subject to the negative resolution procedure. Our starting point is therefore, why should that change?

I am aware that there has been some suggestion that the Government have not been sufficiently clear about their intentions with regard to the use to which they intend to put the power in Clause 22(3). Nothing could be further from the truth. The proposal to introduce a supplementary legal aid scheme was clearly stated in the,

“Summary of the legal aid reform programme”,

contained in Reform of Legal Aid in England and Wales: The Government Response. That paper also contained a five-page annex explaining the proposal in the light of the response to the preceding consultation.

Paragraph 168 of the Explanatory Notes to the Bill also made our intended use of the Clause 22(3) power perfectly clear. Both Houses have now had an opportunity to debate the clause in the light of explanations that we have given. Clause 22(3) was specifically debated both in Committee in the other place and in Committee in your Lordships’ House. We believe that all that, combined with the negative resolution procedure in respect of the regulations, allows adequate public and parliamentary scrutiny in relation to the supplementary legal aid scheme.

The Delegated Powers Committee of the House considered the delegated powers of this Bill and did not comment on the application of the negative resolution procedure in relation to Clause 22(3). The Government’s memorandum to the committee explicitly highlighted our intended use of Clause 22(3). This amendment is therefore unnecessary.

I should also point out that the amendment goes much wider than just Clause 22(3) and would require the affirmative resolution procedure for any regulations under Clause 22. That would be undesirable and disproportionate. The powers under Clause 22 are those that will be used to set out the detailed rules regarding payment of contributions and case costs in respect of both criminal and civil legal aid. The negative resolution procedure is clearly the most appropriate for the type of highly detailed and technical provisions envisaged here, which will require variation from time to time. In those circumstances, I invite my noble friend to withdraw his amendment. I regret the confusion in my note reading halfway through that explanation.

[Lord Thomas of Gresford]

I think it was Champerty rather than maintenance where a third party takes a chunk of the damages that a litigant obtains in court. It is curious how far we have come to defeat these very ancient principles of English law. You can see the Magna Carta barons around the Chamber looking down on us; you can see them trembling as they listen to my noble friend putting forward this proposition. It is true that it was in the Access to Justice Act, but I do not believe that it was ever brought into force. It is also true that it was mentioned in the consultation document, which I read. In a document of some 150 pages, it covered one-third of a page; one paragraph related to it. It certainly was not highlighted either in the House of Commons or in this House that there should be such a deduction from the damages that are obtained by a legally aided person. I regret that.

A supplementary legal aid scheme could have been an alternative to support for conditional fee agreements—an argument that was made a long time ago—and it is true that a supplementary legal aid scheme has been adopted successfully in Hong Kong for people who do not qualify for legal aid. However, to have it in addition to the other provisions of the Bill is regrettable. For the moment—well, for all time—I beg leave to withdraw the amendment.

Amendment 108 withdrawn.

Clause 24 : Charges on property in connection with civil legal services

Amendments 109 to 111

Moved by

[Lord McNally]

109: Clause 24, page 19, line 18, leave out “for” and insert “to”

110: Clause 24, page 19, line 36, after “available,” insert—
“( ) provision modifying the charge for the purposes of its application in prescribed cases or circumstances,”

111: Clause 24, page 19, line 37, leave out “its enforcement” and insert “the enforcement of the charge”

Amendments 109 to 111 agreed.

Clause 25 : Costs in civil proceedings

Amendments 112 to 117

Moved by

[Lord McNally]

112: Clause 25, page 20, line 20, leave out “for” and insert “to”

113: Clause 25, page 20, line 21, leave out first “for” and insert “to”

114: Clause 25, page 20, line 25, leave out “for” and insert “to”

115: Clause 25, page 20, line 34, leave out “for” and insert “to”

116: Clause 25, page 20, line 42, leave out “for” and insert “to”

117: Clause 25, page 20, line 45, leave out “for” and insert “to”

Amendments 112 to 117 agreed.

Amendment 118

Moved by

[Lord McNally]

118: Clause 25, page 21, line 3, at end insert—
“(6A) Regulations may provide that an individual is to be treated, for the purposes of subsection (1) or regulations under subsection (3) or (5), as having or not having financial resources of a prescribed description (but such regulations have effect subject to subsection (4)).
(6B) Regulations under subsection (6A) may, in particular, provide that the individual is to be treated as having prescribed financial resources of a person of a prescribed description.”

[Lord McNally]

My Lords, for the last time I make a solemn promise to the House that I covered the amendment in a letter that is lodged in the Library of the House, and that it is a technical amendment. I beg to move.

Amendment 118 agreed.

House adjourned at 11.42 pm.