Grand Committee
(11 years, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text
Enterprise and Regulatory Reform Bill
(11 years, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text
The Deputy Chairman of Committees (Lord Geddes)
My Lords, as is usual on these occasions, I have to advise the Grand Committee that if there is a Division in the Chamber we will adjourn for 10 minutes. I am told that there is likely to be a Division so we may be adjourning quite soon.
Clause 14 : Power of employment tribunal to impose financial penalty on employers etc
Amendment 20L
“(1A) Subsection (1) does not apply where an insolvency office holder has been appointed to the employer company in any of the capacities specified in section 388(1)(a), (2)(a), (2A)(a) and (2A)(b) of the Insolvency Act 1986.”
Baroness Hayter of Kentish Town
My Lords, Clause 14 gives tribunals powers to impose a financial penalty on an employer who is in breach of their employment responsibilities where there have been aggravating features over and above any award. The intention is to provide a deterrent to employers from neglecting their responsibility towards employees and to discourage them from repeating the breach that has been identified by the tribunal. However, we wonder whether the impact of penalties against an insolvent company has been properly considered.
In most formal insolvencies the management of a company is no longer in place having been replaced by an insolvency officeholder, so any financial penalty would simply represent an additional claim on the assets of the already insolvent company. Needless to say, this would reduce the amount available for creditors, including the HMRC as well as employees. With a maximum penalty of £5,000 per worker, the impact could be significant where there is a large workforce. For example, in the recent insolvency of a retail company, tribunals made awards to 24,000 employees. Should penalties then be added to those awards, substantial amounts would be lost from the money available for distribution to staff or creditors.
Penalties on companies in formal insolvencies where the management is no longer in place would clearly have no deterrent effect as those responsible would no longer be around and not themselves liable for such penalties. Any penalty would therefore deliver no benefit to employees but would simply reduce returns to creditors. It is for this reason that Amendment 20L calls for an exemption from penalties for companies in formal insolvencies.
I am aware that R3 has been in contact with the Bill team on this and so I am sure that the Minister will be well briefed on the issue and on the intention behind the amendment. However, I hope he will not say that the amendment is not proportionate to the size of the issue. At a time of slow growth, which we all acknowledge is going to continue for some time, there will, sadly, be many insolvencies yet to come, and very often in the retail and other employee-rich sectors. I also hope that the Minister will not tell us that there is some magical alternative non-statutory solution, such as guidance to tribunal chairs or enforcement officers. That would be rather silly with a new Bill. It may often be sensible where something unplanned has happened after Royal Assent or when a new Act is bedding down and unforeseen problems occur, but here we could make the provision in the Bill right from its inception.
Furthermore, having this provision in the Bill would give clarity to insolvency practitioners and others dealing with insolvent estates and would remove the threat of such additional costs and all the extra time that is taken in arguing against them, which in itself adds even more to the costs of the insolvency procedure and has to be met out of funds that would otherwise go to creditors. We all know that once a power has been granted in legislation, any amount of non-statutory guidance often fails to prevent its exercise.
Even if enforcement officers are advised that the penalty should not be collected, that would not deal with the problem because the penalty will still exist as a claim against the estate. Also, an insolvency practitioner might have a legal duty to pay regardless of whether such payments are being pursued by the enforcement officer.
Perhaps the biggest disadvantage of relying on non-statutory means is the uncertainty that that creates. Whether or not financial penalties are actually awarded or collected in a formal insolvency does not change the fact that they could be under the Bill as it is currently worded. That uncertainty is particularly damaging in the case of a potential business rescue, where the insolvency practitioner has to be able to predict the liabilities and outgoings of a company that is in administration when deciding whether it is possible to trade it. Obviously, trading such administrations can increase the returns to creditors as well as reducing job losses. Therefore, the addition of potential liability could mean that fewer companies are saved from liquidation.
Our amendment, granting specific exemption for companies in formal insolvency—ie, where the management is no longer in place—would remove such uncertainty. It would not harm employees, who may still have an award made in their favour, and it would merely prevent the creditors of insolvent business having to pay a fine to the Secretary of State for a transgression for which they bore no responsibility.
It seems silly to send this Bill into the world unfit for purpose. The clause was meant to fine those who had transgressed and deter them from becoming repeat offenders, but an IP running an insolvent company is not the transgressor and any such fine would only be paid by blameless creditors.
To ensure that we can find a route to those who have transgressed, we have a second amendment in this group—Amendment 20PA. Because the present Clause 14 would fail to act as a deterrent to directors of companies in insolvency, as any penalty does not fall on them, there may be merit in meeting the Government’s quite correct desire to increase deterrence by introducing a different deterrent for these particular people via an amendment to the Company Directors Disqualification Act 1986. This would ensure that where a breach has occurred that has, or would have, attracted a financial penalty were the company not in formal insolvency this matter is taken into account when considering directors’ conduct.
In a formal insolvency, the insolvency practitioner, who is acting as the liquidator, administrator or administrative receiver, has a duty to report on any director whose conduct makes them unfit to be involved in the management of a company. The matters that IPs have to consider when deciding whether to make such a report are listed in Schedule 1 to the Company Directors Disqualification Act 1986. This amendment would add to that list the issues covered in Clause 14 of this Bill, so that the IP could still consider these matters when deciding whether to report on those whose behaviour has been found wanting but who would currently escape any penalty because they are no longer running the company. I beg to move.
Baroness Brinton
My Lords, I welcome Clause 14, which inserts new Section 12A, but would like to assert the importance of Amendment 20L. New Section 12A(1) allows an employment tribunal, having found that an employer has committed an aggravated breach of workers’ rights, to order penalty payments to the Secretary of State regardless of any previously established financial awards. While this is a just measure, we must not neglect the legal rights and needs of those who find themselves unemployed and faced with their former employer’s insolvency while still owed back pay, expenses or other reimbursements. Under subsection (1) as it stands, employees whose rights have been breached by their former employer would not necessarily receive compensation until after the Treasury, which as primary creditor would receive the penalty for the employer’s infringement before the employees got their redundancy pay. Thus the compensation of workers wronged by their former employers would be secondary to and potentially diminished or even eliminated by the amount paid to the Secretary of State when a company is insolvent and funding is finite. This would obviously be unfair to the former employees of an insolvent company who faced jarring transitions in their finances and everyday lives.
Amendment 20L would cancel subsection (1) where an insolvency officeholder had been appointed. This sensible measure would ensure that employees, as creditors, had primacy in receiving financial redress from an insolvent company. This is an important step to protect workers’ rights. When a company becomes insolvent, tens of thousands of people may become unemployed through no fault of their own, and these people are legally owed compensation, which could also provide much needed fiscal support. If we are genuinely to protect workers’ rights, we should support this Bill with Amendment 20L.
I also support the principles of Amendment 20PA, for the reasons that the noble Baroness, Lady Hayter of Kentish Town, has set out.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Marland)
Good afternoon, my Lords. I hope that your Lordships all had a good weekend break. I am very grateful to the noble Baroness, Lady Hayter, for putting forward this amendment. As she rightly said, R3 has been working closely with our officials to find a way forward in this important part of the legislation and to try to find a modus operandi—or modus vivendi, whichever one wants to call it—to create the right effect.
I am grateful to my noble friend Lady Brinton for saying that the principle is the right course, and I think we all agree on that. However, as I think most people would agree, the problem lies with the practicality of this. The practicality is that an employee goes to a tribunal suing for wrongful dismissal and the company goes bust. It therefore has no money to pay anybody—in theory, that is why it has gone bust—and there is no right of recourse. I think that my noble friend Lady Brinton was right when she said that we would want to ensure that that wronged employee was very high up the pecking order in attracting revenue from the residual of the company’s assets.
I assure my noble friend that employees have rights equal to those of other creditors. There was some mention that the Exchequer sat ahead of them. The Exchequer does not sit ahead of employees in rights, so it has rights equal of those of the employee. I fear that it is slightly like banging one’s head against a brick wall in that, if nothing is left over in the tin, no one is going to get anything—not the Exchequer, not the suppliers and not the good staff, who have not been paid. That is the problem with this issue. Of course, everything is prefaced by the fact that the tribunal judge knows what is going on and so uses his discretion. It is right that he is empowered to use his discretion in finding out the state of the company to see whether there is going to be money in the tin, quite rightly, to pay this wronged individual.
For the company, £5,000, which we agree is a reasonable figure, is not enough to impact on whether or not it goes into liquidation. It is a small amount in terms of that overall decision and so is not going to be the driver that stops the company trading. Although we are sympathetic to this issue, in our view it is almost impossible to be prescriptive about it, and therefore I do not see how this amendment would work.
Similarly, with Amendment 20PA, there is already a list of four prescriptions for determining the unfitness of directors. If we start adding to that list at this point, where do we stop? Out of a board of 15 directors, is there one director who has failed to behave properly, and should we therefore take action against all directors? Should we expand this prescription, which came into force in October 2009 under the previous Government and which we supported at the time? I just do not think that at this point it can be limited to one director, despite the fact that I see the direction of travel of the noble Baroness.
I also want to say again that the judge at the tribunal will take into account the misbehaviour of a director when making his award. That is his job. He will see the evidence, which will be presented to him openly and fairly, and he will take that into account in his award. I acknowledge the difficulty and problems that we have with this particular aspect, and acknowledge and thank those who have said that it is the right direction of travel, but with this provision we would make it too prescriptive for ourselves. We continue to talk to R3, and we will continue to talk to the noble Baronesses about this as we go into Report. On that basis, I hope that the noble Baroness feels that she can withdraw her amendment.
Baroness Brinton
I ask for some clarification. The Minister said that the tribunal judge will obviously have a discretion, and I absolutely accept that point. However, the amount could be considerably more than £5,000. New Section 12A(1) refers to each worker involved, and I referred in my speech to a large organisation going bust. Even at the minimum of £100, if thousands of people lose their job, the penalty will still be quite a large sum that could take precedence over redundancy pay.
Lord Marland
We will pick that up in another part of the Bill, on the award, where the penalty is 50% of the award per employee. We have tabled amendments on that point. We can debate the point then, if the noble Baroness is satisfied with that.
Baroness Hayter of Kentish Town
I thank the noble Baroness, Lady Brinton, for her support. I find it hard to thank the Minister because I do not think that he has really quite got the point. These companies are already in insolvency, so the question of whether to take into account whether they will continue to trade is not the point; the point there is whether they will be sold on.
What is the purpose of a penalty against the directors who are no longer running the company? I cannot see the point of that, and I do not think that the Minister answered the question. We are talking about penalties, not awards to employees. Although the Minister is correct that they will rate on holiday pay, redundancy and, I think, sick pay—I need help from an expert on that—if money is due into the pension scheme, that would not rate higher than a penalty due to the Secretary of State. There will be other employee interests that could be damaged by this.
I am slightly surprised that the Government feel any need to put a penalty against a company for a transgression when the people concerned are no longer there. We will bring this back in due course, but, for the moment, I beg leave to withdraw the amendment.
Lord Young of Norwood Green
Amendment 20M would remove the requirement that a financial penalty be set at 50% of the amount of any compensation awarded. We support the provision to levy an additional fine on employers where they have been found to have breached an employee’s rights and there are so-called aggravating features. We hope that this will act as a further deterrent to rogue employers. However, when considered in the context of the main thrust of the Government’s changes to the employment rights landscape, such as the increase in the unfair dismissal threshold to two years and the extension of new settlement agreements, all of which will make it easier for employers to get rid of workers without following proper process, I am not optimistic about the difference this will make. We have some questions over the practical detail of this provision—for instance, what will be considered an aggravating feature, and the impact that it might have on speed of payment of compensation? However, we will discuss those issues in later amendments.
This is a simple probing amendment to understand further the Government’s thinking behind setting the level of fine at 50% of any compensation awarded. We are not strictly opposed to this being the level set but it seems overly prescriptive in that, earlier in the clause, the Government have already set out the parameters for the amount that an employer may be fined under this proposed new section.
We understand that it is important that employers have certainty about the level of fine that they might face if a claim is upheld. However, we would have thought that setting the minimum and maximum levels of penalty at £100 and £5,000 was a more than sufficient guide to employers about what they might face. What is more, if the Government are still anxious about clarity we would have thought that their first priority would be to produce guidance on what will be considered an aggravating feature. I beg to move.
Lord Marland
My Lords, this is an amendment that my noble friend Lady Brinton was also alluding to. It is a very reasonable probing amendment. What we are building on here is the Labour Government’s legislation, which we supported. I am grateful that the noble Lord, Lord Young, has indicated that he is broadly supportive of the direction of travel. We are trying to have here an award of 50% of value rather than an arbitrary figure of between £100 and £5,000—£100 being the floor and £5,000 being the ceiling. There is therefore a consistency of approach, as you would get an award of 50%.
I would like to move on to the question that I said I would answer from my noble friend Lady Brinton. In the case of multiple cases against the same employer, this clause provides for the tribunal to impose a penalty of varying amounts up to a maximum of 50% for each employee, unlike single claims where the penalty must be 50% of the value of the award. I notice that my noble friend is nodding so it is not as clear as mud but absolutely crystal clear to her, which is of great benefit to me because she has greater experience of this than I. It is perfectly reasonable and fair that we should have a 50% award and that we do not have arbitrary figures. I know that the noble Lord, Lord Young, believes that that is fair. On that basis, having clarified our position, I hope that the noble Lord is able to withdraw his amendment.
Lord Young of Norwood Green
I asked what would be considered an aggravating feature and about the impact it might have on the speed of payment of compensation, but the Minister did not return to the point.
Lord Marland
That is a perfectly reasonable question, and I know that the noble Lord is asking me a question to which he knows the answer—as he often does, because he knows a lot about these things. We cannot be prescriptive about aggravating speeches—sorry, I meant aggravating features. We do not intend to supply that but we have a list of examples which is in the Explanatory Memorandum. I feel sure that things such as deliberate or malicious acts, et cetera, would satisfy the question to which the noble Lord knew the answer before he asked me.
Lord Young of Norwood Green
Such cynicism so early in the day. All I can say is that we will take into account the Minister’s response. I am not saying that we are fully satisfied with it—we may return to the issue on Report—but, for the moment, I beg leave to withdraw.
““aggravating features” includes a failure or failures by an employer to follow its own grievance or disciplinary procedures (or both), or, where an employer does not have its own grievance or disciplinary procedures, the ACAS code of practice on disciplinary and grievance procedures; or a failure by an employer to provide any adequate training to its managers in grievance and disciplinary procedures;”
Lord Young of Norwood Green
My Lords, Amendments 20MA and 20MB are intended to probe the definition of aggravating features—I fear that this will be an aggravating speech in that respect—and to highlight what is perhaps the key to all of this, which is the proper training of managers in grievance and disciplinary procedure, and even in training, I think. I say that genuinely, because it is a subject that I have brought up time and again in these debates. If the Government could only focus more on that than on the firing of employees, they would do industry a much bigger favour.
Amendments 20MA and 20MB would include in the definition of aggravating features consideration of whether an employer has established any grievance or disciplinary procedure and has provided adequate training to its managers in following those procedures. Underlying much of the Government’s changes to employment rights in the Bill and elsewhere is the idea promoted by Adrian Beecroft, among others, that the most urgent problem facing employers is not being able to get rid of underperforming workers and that by stripping away employment rights, we will have a more productive workforce, creating more jobs.
I could not help noticing the reaction of a medium-sized employer in the north, a removals company, to the Chancellor’s Autumn Budget Statement. It welcomed the fact that there would not be an increase in fuel duty because that would enable it to take on more employees, some of whom would be on zero-hours contracts. I did not hear the caveat, “We would have taken them on, but we will not be able to fire them in future, so we won’t”. That shows me what is really focusing employers’ minds in whether they hire more employees. After all, we are told that that is the Government’s driving motive behind the Bill.
We believe that stripping away employment rights is fundamentally misconceived and stems from a real lack of understanding of how the law works in practice. Contrary to what the Government claim, it is not difficult to dismiss an employee, but the employer must follow the proper disciplinary procedure. Time and again you will hear that that has not happened. Employers have inadequate or, in some cases, no disciplinary procedures in place. It is then that they are rightly challenged by the employee.
Including it as a consideration in whether to levy an additional financial penalty would send a strong signal to employers that it is unacceptable not to make adequate provision for a formal disciplinary or grievance procedure and for the training of their managers. As well as incentivising proper training and procedure, which would, we hope, lead to fewer claims being brought in the first place, the listing of possible considerations under the definition of aggravating features in the amendments would also provide greater clarity about what actions by an employer might result in a financial penalty under Clause 14.
The Explanatory Notes state:
“Section 12A does not prescribe the features which employment tribunals should take into consideration when determining whether a breach had aggravating features; this is for the employment tribunal to decide”;
and that, furthermore:
“The concept of aggravating features in section 12A is not the same as the existing regime of aggravated damages in discrimination claims in England and Wales”.
To my knowledge, the Government have not set out anywhere a list of features which might be deemed aggravating by the tribunal. We urge the Government to provide further clarity on that issue. I beg to move.
Baroness Turner of Camden
My Lords, I hope that the Government will see fit to accept the amendment, because I should have thought that it was in their interests. One of the aspects that comes out from discussion of the Bill is that the Government are anxious to stop people going to tribunals. Of course, if you have managers properly trained and a series of agreed procedures, it is far more likely that issues will be settled in-house, so to speak, rather than having to go to a tribunal in the first place. Therefore, it seems very much in the interests of the Government to accept this wording, which talks about the aggravating circumstances but also, I hope, will act as an incentive to employers to make sure that their managers are trained. If you have a trained management, you are much less likely to have an issue that needs to be taken to a tribunal. As we know from our previous discussions, the Government are endeavouring to limit the number of issues that get to a tribunal. I should have thought that acceptance of the amendment was in line with that policy.
Lord Marland
First, I would like to make a couple of points on training, which is of great interest to the noble Lord, Lord Young of Norwood Green. We all agree that training is absolutely fundamental and his knowledge, expertise and commitment to it are very high. This Government have spent a huge amount of money on training, on mentoring and on various other things. We must be getting something right because a million new jobs have been taken on board in the past two years in the private sector. We do not have a load of people running away from employment. It demonstrates clearly that, with unemployment going down and employment in the private sector going up, the policies that we have created to foster employment are working and seem to be working satisfactorily. I do not think that this is a block to training or ongoing employment. The noble Lord would have been right to point it out had this Government not been keen that we should do it.
Let us be fair. All of us are keen that employers should meet their obligations to their employees. That is what we are all here for. None of us is here saying that we want to withdraw this and that. We are arguing around the margins. Throughout this, as I have also argued, ultimately it is up to the tribunal. As we have said, and as the noble Baroness, Lady Turner, has rightly said, a tribunal is the last place where we want things to go to. We want them to have gone to ACAS beforehand, as we have previously agreed, and we want the employer and the employee to have sorted it out by themselves. I am compelled by the point made by the noble Baroness.
Ultimately it is the tribunal that will be making the decision if it gets to that point. We hope that it does not. It will ultimately determine whether there are aggravating features and we cannot be too prescriptive about aggravating features. Paragraphs 86 and 87 on page 18 make it clear how we see this. With that, I rest my case, other than to say that these tribunals have it in their power to take these issues into account. They can uplift the award by 25% should they so wish and we would obviously urge them to do so because we all want to see the right and fair things for employees and employers. With that I hope the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
The Minister has still not addressed our main concern. I do not deny that the Government are spending significant amounts of money on training and we welcome that. Our concern is the worrying statistic produced by the Chartered Institute of Management which says that only one in five managers have any training. That is a worrying statistic. The purpose behind the amendment was to give a clear signal to employers that if they persist in failing to train their managers or having proper procedures they will pay a price. While we beg leave to withdraw the amendment, we will consider returning to this on Report.
“(11) Any money paid by an employer purporting to meet a liability to pay a penalty under this section shall be treated instead as payment of any financial award on a claim against that employer to the extent that any such award has not been paid.”
Lord Young of Norwood Green
My Lords, Amendment 20N follows on from the previous amendment in that it also deals with unpaid compensation. This amendment would allow the tribunal, in making an award on a claim, also to specify a date by which that award should be paid, to be no later than a month following the decision. In addition, it would allow the Secretary of State to bring forward regulations to charge interest on any award that remained outstanding beyond the payment deadline specified by the tribunal.
On Report in another place, the Minister said in relation to unpaid awards that the Government are,
“consulting on two changes that I believe might have some effect on the number of awards paid promptly. They include proposals to put a date on a tribunal’s judgment specifying when payment should be made and to charge interest from the date of judgment where an award is unpaid after 14 days. These charges will apply to all cases, not just to unfair dismissal cases. Importantly, in that scenario the interest will be added to the award and paid to the claimant”.—[Official Report, Commons, 17/10/12; cols. 344-45.]
That consultation closed on 23 November. Therefore, I am very keen to hear from the Minister the Government’s findings in relation to this important issue and whether they will accept the opposition amendment that seeks to bring into effect a new power to ensure that compensation is paid to the individual. I beg to move.
Lord Marland
Of course we are in great harmony, even though I am sure I shall have it thrown back in my face. The consultation ended in November and we are about to publish the information. Incidentally, when we have established our response, I shall be very happy to have a private meeting with the Opposition—of course, there is no reason why it should be with just the Opposition; it should be with any noble Lords in this Room—to discuss the various aspects of this issue, and my officials will be at your Lordships’ disposal. I do not have the information to give the Committee chapter and verse right now but we will give noble Lords chapter and verse before we get to the next stage of the Bill.
I acknowledge that there is a problem with enforcing awards. With that in mind, and in order to recognise to some extent noble Lords’ interpretation of this matter in tabling this amendment and the reference to it at Second Reading by my noble friend Lord Razzall, we are going to commission some research before Christmas. We are about to appoint someone, who will report on the subject in April. We totally acknowledge that this needs to be right. All of us in this Room share the same concerns, and we are committed to going along the same path together. On that basis, I hope that the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
My Lords, I welcome the invitation to discuss the issue with the Minister following the consultation. In the light of that assurance, I beg leave to withdraw the amendment.
“(11) Where an employment tribunal makes a financial award against an employer on a claim, that tribunal must also specify a date by which that award must be paid.
(12) A date specified under subsection (11) shall be no later than one month following the date on which the decision was made.
(13) The Secretary of State shall introduce an order providing for the payment of interest by an employer on any award that remains unpaid after the date specified under subsection (11).
(14) Any interest levied under subsection (13) shall be paid to the worker to which the claim has been awarded.”
Lord Young of Norwood Green
My Lords, this amendment follows on from the previous amendment and provides for the tribunal, when making an award on a claim, also to specify a date by which that award should be paid, to be no later than a month following the decision. It also allows the Secretary of State to bring forward regulations providing for the payment of interest on any unpaid awards. I would welcome the Minister’s response. I beg to move.
Lord Marland
Again, I think that I largely responded to this amendment in my comments on the previous amendment. We will be publishing our findings and are assimilating them at the moment. We have committed to publishing them in February, which we will do, and I do not really want to go into too much detail now. I am happy to talk about the whole issue at large with anyone who would like to know about it, and I hope that that answers the question raised by the noble Lord.
Lord Young of Norwood Green
My Lords, I think that that leaves us in the same situation we were in on the previous amendment and, again, I welcome that assurance. In the light of that, I beg leave to withdraw the amendment.
Lord Young of Norwood Green
My Lords, the amendment is an alternative to the public interest test proposed by the Government. The advantage of the amendment is that it deals with the Parkins v Sodexho Ltd points directly by narrowing the breach of legal obligations category at Section 43B(1)(b) of the Employment Rights Act 1996. This is a better solution than the Government’s proposal, as the public interest test is likely to lead to satellite litigation as courts are left to consider what is and what is not in the public interest.
The amendment was proposed by Ian Murray MP during Committee in the Commons, but was rejected. During the Commons Committee, Norman Lamb MP, serving as the Parliamentary Under-Secretary of State for Employment Relations, Consumer and Postal Affairs, objected to the proposal on three grounds: first, that there can be private contractual rights that it is in the public interest to cover; secondly, that the public interest test is needed because the abuse of the whistleblowing provisions is commonplace; and, thirdly, that the proposal will stop workers from gaining protection for trivial breaches of health and safety.
The first point shows a fallacy in the Government’s argument, as it seems to suggest that there are private employment rights that it is in the public interest to cover, therefore undermining the need to have the Government’s test.
The Government state that the provision is being widely misused. There has not been consultation on the issue, and all evidence is anecdotal. Although the Parkins v Sodexho Ltd point may have led to some individuals misusing the legislation, the Government’s approach is worrying. They overestimate the scale of the problem. Whistleblowing claims lodged with the Employment Tribunal Service account for less than 1% of all claims. During the Scrutiny Committee, Public Concern at Work provided evidence to show that during 2009-10, only 35 judgments involved a Parkins v Sodexho Ltd point out of 464 substantive judgments.
Thirdly, the point about triviality is misguided. The purpose of PIDA is to prevent a disaster and to encourage workers to speak up when they have suspicions. Issues that at one point seemed trivial may in fact be indicative of underlying problems in an organisation and could be the tip of the iceberg. A public interest test may have the unintended consequence of focusing on how big the disaster is or was likely to be and mean less focus on reporting early suspicions. Issues such as missed medication in a care home may seem relatively minor compared to a multi-million pound fraud, such as that in the high-profile Olympus case, but the former could be a matter of life and death.
Moreover, the test builds the perception of barriers in the protection of whistleblowers. When that is added to the fact that PIDA is little known and often misunderstood, we believe that the legislation will be undermined by that approach. It will also add to the idea promulgated in the media that if you are a whistleblower, you will be burned and that the law is too complicated to protect you.
In sectors such as health and care, where whistleblowing can save lives and taxpayers’ money, and where gagging clauses and hierarchical professions and workplaces impose real obstacles for the individual, such an amendment will be seen as another obstacle. The honest and reasonable whistleblower, faced with an increasingly complex piece of legislation to navigate, should they be poorly treated, may not choose to speak up. That is a rather damning and worrying position, nearly two decades on from the Bristol Royal Infirmary inquiry, when the whistleblower, Dr Stephen Bolsin, was forced to leave the UK to find work. That shows the pressures on whistleblowers in difficult and sensitive situations. I beg to move.
Lord Marland
My Lords, I have been very interested in the whole discussion on whistleblowing. I thank the noble Lord, Lord Touhig, and his team for their input to our thinking in the past few weeks. It has shed light on a number of issues that we will deal with later in his amendments, which are well thought out and on which we are coming to a conclusion. I want all Peers to know how important we believe this matter to be and how important it is to get it right. We are all singing off the same hymn sheet and obviously want to protect the whistleblower, and that is very much part of what we want to do.
My concern is that the amendment would narrow the whistleblowing provision. Public interest is critical: that is the primary thing rather than breach of contract. The noble Lord, Lord Young, has thrown up a number of examples of breach of contract and we could counter with examples showing where it does not quite work. I am delighted that the noble Lord, Lord Borrie, has just arrived because he is the one we have looked back to in coming forward with this. I wanted to look this up when we first embarked on this issue: at Second Reading on 11 May 1988—we were only children then—the wisdom of the noble Lord, Lord Borrie, had been honed to absolute perfection in the Public Interest Disclosure Act. I shall not read all of his speech but the following words are spot on. He said:
“As I hope I have made clear, this measure will encourage people to recognise and identify with the wider public interest and not just their own private position”.—[Official Report, 11/5/98; col. 891.]
I consider that in returning to contract people would identify with private position rather than the wider public interest. That is the seriousness of the threat. My view and that of the Government has not changed since then—I have given only an extract from an excellent speech—and I believe that we should carry on on that basis. I hope that will encourage the noble Lord to withdraw his amendment.
Lord Borrie
It is hardly for me to criticise when the Minister has quoted from a speech of mine in the most favourable terms, but the debate was in 1998, not 1988.
Lord Marland
I apologise. Of course, the noble Lord’s wisdom had been honed even further by 1998, which gives the speech more gravitas.
Lord Young of Norwood Green
I thank the Minister for his response. We will read Hansard carefully to see whether we need to return to the issue. I beg leave to withdraw the amendment.
Lord Marland
“(2) Section 43K of that Act (extension of meaning of “worker”) is amended as set out in subsections (3) to (8).
(3) In subsection (1)(ba)—
(a) for “section 84 or 100 of” substitute “section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,”;(b) for “section 42 or 57 of” substitute “section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,”;(c) omit the words after “the National Health Service (Wales) Act 2006”.(4) In subsection (1)(bb), after “section 17J” insert “or 17Q”.
(5) In subsection (1)(c)—
(a) for the words before “in accordance with arrangements” substitute “works or worked as a person providing services”;(b) in sub-paragraph (ii), after “section” insert “2C, 17AA, 17C,”.(6) Omit subsection (1)(ca) and the preceding “or”.
(7) Omit subsection (2)(ba).
(8) After subsection (3) insert—
“(4) The Secretary of State may by order make amendments to this section as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in section 230(3)).
(5) An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.”
(9) In section 236(3) of that Act (orders etc subject to affirmative resolution procedure), after “shall be made under section” insert “43K(4),”.
(10) In consequence of the amendments made by subsections (6) and (7), omit paragraph 7(a)(ii) and (b) of the Schedule to the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006 (S.I.2006/1056).
(11) Until the coming into force of the repeal (made by Schedule 3 to the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13)) of sections 27 to 28 of the National Health Service (Scotland) Act 1978 (“the 1978 Act”), section 43K(1)(c)(ii) of the Employment Rights Act 1996 has effect as if it included a reference to section 27A of the 1978 Act.”
Lord Marland
My Lords, government Amendment 21 aims to ensure that the right people are covered by the whistleblowing protections and amends the definition of “worker” in Section 43K of the Employment Rights Act 1996.
Following National Health Service reforms, certain health professionals have been inadvertently excluded from whistleblowing protections as their contractual agreements are not covered by the existing definition of “worker” in the legislation. We believe that it is important that this situation is rectified, so we are amending the definition of “worker” to cover these individuals. We are also taking a power to ensure that future amendments to the definition of “worker” can be made through secondary legislation. This will provide us with the flexibility to react promptly to ensure that the right individuals are protected.
I trust that noble Lords will support this move which remedies an inadvertent omission and ensures that health workers are properly protected. I beg to move.
Baroness Turner of Camden
My Lords, I understand from the Government’s statement and from what the Minister has said that the intention is to ensure that people who ought to be covered by the Act in future will in fact be covered. What bothers me about it, however, is Clause 4, which gives the Secretary of State the right to make amendments as to what individuals count as workers for the purpose of this part. It seems to me that that leaves the whole thing fairly wide open as far as the Government are concerned: they would be able to introduce secondary legislation to indicate that some people are workers and other people are not workers. That is a bit of a difficulty as far as we are concerned.
As far as the clause itself is concerned, it had been my intention to move that it should be opposed, mainly because the TUC’s view is that the wording as it now exists in the Bill introduces a public interest test into whistleblowing rights and, for such claims to succeed, the employee will have to demonstrate that he believed that disclosure was in the public interest and that this belief was reasonable in the circumstances. The view of the TUC was that this would limit the protection that employees have in raising concerns about health and safety issues at work. The Law Society also has doubts about this clause. For these reasons I intended to oppose the clause. However, my noble friends have further amendments which we are due to discuss and which I think will deal with some of the problems that some of us have with this clause.
Of course, I am sure that the Minister will appreciate that it is very important to ensure that workers, particularly those working in very dangerous environments, do not have any restrictions about whether or not they may raise problems they have about health and safety at work. I can remember my own union being very much involved with this many years ago when there was the awful accident at Piper Alpha in the offshore oil industry, in which a number of workers were killed. We discovered on investigation that a number of individuals working there had short-term contracts and, because they had short-term contracts, they were very reluctant to warn about the kind of issues that were of concern to them about safety and so on because they feared that they would not have their short-term contracts renewed.
There is a case for looking at the way that this clause in the present legislation works to ensure that we do cover everybody who might have the possibility of drawing attention to possible dangers in their working environment. We must be absolutely certain that they are not prevented in any way from raising those particular issues. I will not, this evening, be pressing the opposition to the whole clause, but I certainly think that we need to look at it very thoroughly before the legislation leaves us.
Lord Stevenson of Balmacara
My Lords, in the margins of the debate that we have just had the Minister very kindly passed across the original quote from the 11 May 1998 House of Lords Second Reading debate on the then Public Interest Disclosure Bill. I had to read it very quickly because I was not as well briefed as perhaps I should have been when coming to this debate. I want to make a point that I think influences the way that we might need to respond to the clause-stand-part part of the discussion that we are having today.
The interesting thing about this debate is that we are focusing on the words “the public interest”. I suggest to the Minister that it might be sensible to have a discussion about what the Government are trying to do here. Rather than in the openness of this debate, perhaps we could have a side meeting on it. The reason I am saying that is that, reading the speech of the noble Lord, Lord Borrie, one might think that if he made it up as he went along, it was extremely well written. I imagine that he read it out at the time from a brief that he had. The important thing about it—I am sure that the Minister will have been on to this immediately—is that the Minister was selective in what he quoted to us. The noble Lord, Lord Borrie, said that,
“the tribunal must be satisfied that that disclosure was reasonable, having regard, among other things, to the seriousness of the threat to the public interest, whether the danger is continuing or likely to occur again, whether the disclosure was in breach of an obligation of confidentiality owed to a third party and, where appropriate, whether use was made of any whistle-blowing procedure which the organisation had in place”.—[Official Report, 11/5/98; col. 891.]
The noble Lord then went on to make the quote to which the Minister referred.
The point that I want to underline is that the tribunal has to be satisfied that disclosure was reasonable: that is the founding principle of this part of the legislation. “Having regard to” is a secondary feature of that in relation to the seriousness of the threat to the public interest. It seems to me that this amendment substitutes the present arrangements for the reasonableness —having regard to other things—of the seriousness of the threat to the public interest, to a direct concern for “the public interest”, however we define that. It seems to me that in making that rather elegant elision we are in danger of opening a much wider range of issues that need more thought than we can possibly give it in this Committee, which is why I suggest that we have a meeting.
The Minister says that this is ongoing work—we welcome that. He says that it is important—we certainly echo that. He is also asserting, and we would agree with this, that we are singing off the same hymn sheet. So we are surely trying to get to the same place here. I do not think that there is a difference of approach: I just worry that the wording is not as you would do it.
The complexity of this issue is that, as the noble Baroness said very clearly, we all want those who should be covered to be covered by this part of the legislation, but we do not want to have the risk that those who could be covered are not covered by it. I think that that is a really important point. It is in that sense that we would ask the Minister to respond to this and, perhaps, to take up our suggestion of a side meeting.
Lord Marland
I am always available for side meetings to discuss this. I think that the noble Lord, Lord Stevenson, is clutching at straws a little in his interpretation, but then, we each have our own interpretation. I do not see that, at the end of it all, we are going to move this back to breach of contract, to which the previous amendment—which is now withdrawn—related. I am grateful for the noble Lord’s words that we are all trying to move along the same path together. That is why we should continue to discuss this, which would be most welcome.
The noble Baroness, Lady Turner, reminded me of Piper Alpha. I used to be in the insurance industry and that was a seismic event for that industry. How well I remember the loss of life. It was a shocking moment for everybody who was involved in insurance. Luckily those who were worried ended up in jobs because, obviously, the oil industry was able to recover very quickly from that horrendous accident and its expertise was needed.
Both the noble Baroness and the noble Lord, Lord Stevenson, mentioned the list. It is all about definition of “a worker”. We can only remove “a worker” from the definition if that category of worker no longer exists. What we have sought to do in the first part, which I think everyone is very happy about, is to recognise that we have failed to add some workers in. We have put a provision in the Bill to add others in if a worker group does start to exist, and of course we will remove one if they do not exist. It is an ongoing thing, which is why we have provided for that definition.
I am not quite sure where we have got to. Lord Chairman, perhaps with your great wisdom you can guide us. I moved an amendment and I think that the noble Baroness was speaking to her amendment as well as to mine. I ask for guidance, Lord Chairman. I hope that one amendment will be supported and the other will not be pressed.
Lord Geddes
As is normal on these occasions, we take it strictly by the order of the Marshalled List. The question therefore is that Amendment 21 be agreed to.
Lord Touhig
“Duty on employers to prevent detriment caused by others to workers who have made protected disclosures
(1) The Secretary of State shall make regulations requiring an employer, where a worker has made a protected disclosure under section 43A of the Employment Rights Act 1996, to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employer done on the ground that the worker has made the disclosure.
(2) Regulations under this section—
(a) are to be made by statutory instrument, and(b) are not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Touhig
My Lords, I am grateful to my noble friend Lord Wills, the noble Lord, Lord Low of Dalston, and of course my noble friend Lady Dean of Thornton-le-Fylde for agreeing to support Amendment 22. I am also grateful to the Minister, the noble Lord, Lord Marland, for agreeing to meet with me and representatives of the charity Public Concern at Work to discuss this amendment and Amendment 23. I also thank him and his officials for being willing to continue this dialogue with Public Concern at Work these past couple of weeks.
This amendment concerns vicarious liability. Earlier this year, I received a letter from one of three nurses who had been denied protection under the Public Interest Disclosure Act. The three nurses had raised concerns about the qualifications of a fellow nurse. The nurse had been claiming to be more qualified than was in fact the case. The three nurses were subsequently victimised and, as a result of raising honest and genuine concerns, one had threats made to her daughter and to her home. The case went as far as the Court of Appeal, where it was found that vicarious liability does not exist under the Public Interest Disclosure Act. As a result, three totally innocent and good nurses, who simply acted to protect the public, were pursued by the NHS Manchester trust for the cost of the appeal, which amounted to £39,000.
These three nurses acted in the interests of us all but, as a result, have themselves become victims. I have to ask: where do people go to right a wrong such as this, except to Parliament? As things stand, employers are able to escape liability where they do not protect those who have blown the whistle about serious malpractice within their workforce. On top of that, the bullying culture within the workplace is all too common.
Public Concern at Work tells me that bullying as a result of whistleblowing is a common issue raised on their whistleblowing advice line. Indeed, this is so in the case of Nurse Helene Donnelly, who gave evidence to the Mid Staffordshire NHS trust inquiry. She is a whistleblowing nurse who told the inquiry how she was physically threatened by colleagues after raising concerns about standards in the accident and emergency department. She told the inquiry that,
“threats to my physical safety were made”,
to the point where, after finishing work at night, she would have a family member,
“come and collect me from work because I was too afraid to walk to my car in the dark on my own”.
Mrs Donnelly also told the inquiry that she contacted her local Royal College of Nursing representative, who was initially shocked by what she had to say. Later, however, she was told to keep her head down.
Amendment 22 encourages employers to put whistleblowing arrangements in place and, if they do all they can to protect the whistleblower, employers will have a defence. It has been drafted widely to include third parties but, given the Government's review of third-party harassment under the Equality Act, it could be limited solely to co-workers. The letter I received from one of the nurses asks one simple question:
“Is there anything you feel you may be able to do to stop NHS Manchester pursuing us for these costs?”.
Well, there is something we can do and that is to support Amendment 22. I beg to move.
Lord Wills
My Lords, I support Amendment 22, to which I have added my name and which has been so ably put forward by my noble friend Lord Touhig.
As we have heard, Amendment 22 seeks to close a loophole which was opened up by a Court of Appeal decision on a case brought by the three nurses from Manchester. The Court of Appeal judge who ruled in that case said:
“I accept”,
that the claimants’ lawyers,
“may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament”.
We now have an opportunity to provide that remedy and I hope that the Government will take it.
The Minister’s noble friend, the noble Earl, Lord Howe said in October last year, when the results of this case were heard:
“We are considering whether we need to do more to protect whistleblowers following this judgment”.
Can the Minister tell us the outcome of those considerations within government; and, if they are not going to act now, why not?
As we have heard from my noble friend, there is significant evidence from the organisation Public Concern at Work that harassment and bullying by co-workers can often be a consequence of whistleblowing and a substantial deterrent to it. This is not acceptable. It is not acceptable that an employer can escape liability for failing to protect a whistleblower from such harassment and bullying. The amendment offers a simple way of remedying such an obvious anomaly by mirroring equality legislation. I hope the Government will feel able to accept it.
I also hope that the Minister will look favourably on my Amendment 23E, which further refines this approach by providing for personal liability against workers who bully or harass co-workers for whistleblowing. It will act as a powerful deterrent to such behaviour and, in doing so, help to encourage whistleblowing. It mirrors provisions in discrimination legislation and I hope that the Government will feel able to accept it.
Lord Low of Dalston
My Lords, I have added my name to the amendment but I do not think I can say a lot more than has been so eloquently said already by the noble Lords—they are not my noble friends—Lord Touhig and Lord Wills. Clearly there is a loophole in the law. The court has said that if the matter is to be resolved it is down to Parliament to do it. The Minister’s noble friend and colleague Lord Howe has recognised that there is a need to give attention to this matter and we shall all be interested to hear how far the Government have got with that consideration.
We have the opportunity now to do something about this and I am sure that everyone agrees that we should. I have been horrified by the cases we have heard about—the Manchester nurses and others—where people have been subjected to threats of having their houses burnt down and so on. This is clearly intolerable. There needs to be a legal remedy and the one proposed is perfectly appropriate. It does not impose an unduly onerous burden on the employer, who is simply required to take no more than reasonable steps. That being the case, I strongly urge the Grand Committee to support the amendment.
Baroness Dean of Thornton-le-Fylde
My Lords, I support what has been said by the noble Lord, Lord Low of Dalston, who happens to be a friend. If there is a part on whistleblowing in the Bill when it leaves the House, these two amendments will make a significant difference.
We could all regale the Committee with a number of stories about people being bullied and intimidated, but the case in Manchester went the whole hog and the courts were not able to help. Not only were the three nurses concerned unfairly treated but the case sent a strong message to people in the health service to keep their heads down and not to complain because, even if they complain and it goes through the ultimate procedure, the employer will not be able to stand with them. In fact, in this case the employer pursued the nurses for damages.
I do not wish to extend the debate. This is a principal issue in the Bill as it stands and, if this House can make an amendment along the lines of the one proposed—even if it is not worded perfectly at the moment—it will be a major contribution. There are no divisions between the parties on this. We all want to see the role of the whistleblower not only enhanced and supported but protected, otherwise the message going out will be, “We have the legislation, but please do not use it”.
Baroness Brinton
My Lords, I add my support to Amendments 22 and 23E for all the reasons already stated. It is unfortunate that many of the examples cited have referred to the NHS, where it seems that there is still quite a culture against whistleblowing. Having been involved in two organisations as they created whistleblowing policies, I know it is not just a matter of legislation; it is very much about changing the culture within an organisation. It seems to me that the remedies for solving this very particular problem exist within Amendments 22 and 23E, so I do hope that the Government will consider them.
Lord Borrie
I apologise for not being here earlier when the subject of whistleblowing obviously came up in discussion. I was hoping to be here from the beginning, but I am afraid I am one of those caught by having an interest in another Bill—the Crime and Courts Bill—that is going through the Chamber. I waited until my interest had ceased there before coming here, for which I apologise.
I support this amendment very warmly. The more I hear of it from speakers from the Liberal Democrat Benches and the Cross Benches, as well as from the Official Opposition, the more strongly I feel that there is a gap in the whistleblowing legislation that needs to be filled.
The Public Interest Disclosure Act 1998 was a Private Member’s Bill that would not have reached this House at all had it not been for the efforts of Richard Shepherd, still a Member of Parliament for Aldridge-Brownhills, who took up the cudgels, helped by the organisation Public Concern at Work, which still exists and does valuable work. When he had the support of the Commons, I was able to take on the task of putting it through the House of Lords. Several of my supporters at that time are sitting in this Room today, including my noble friend Lady Dean of Thornton-le-Fylde, who has just spoken so helpfully on this amendment.
I feel that the gap in the whistleblowing legislation is a fundamental one that really needs to be filled. A whistleblower is protected against unfair dismissal if he is covered by the existing legislation and has reported on some wrongdoing in the workplace, but he cannot be protected from fellow employees. They may engage in bullying, harassment, or whatever you would like to call it, against the whistleblower for doing what many people in certain cultures within certain employee workforces would call “sneaking”. The whistleblower has snitched on fellow workers, and in many places of employment that is regarded as wrong and it is considered that the whistleblower deserves to be pushed around in every possible way. Making the employer responsible or vicariously liable—I am sorry to use that phrase if noble Lords are fed up with the lawyer language in this place—for the faults and errors in the culture of their workforce is what is needed. That will do the trick, making it in the employer’s own interests to ensure that victimisation, harassment and bullying does not take place. It will be a powerful deterrent if this amendment is passed.
A whistleblower can be affected adversely not only by his employer, for which there has now been protection for many years, but by fellow employees, and this amendment is meant to deal with that. My noble friend Lord Touhig was active in this area in the 1990s, before I was. If this amendment is carried it will be because he and Public Concern at Work have realised and understood that there is a gap that must be filled when we have the opportunity.
Lord Brooke of Sutton Mandeville
My Lords, I have no idea what the Minister is going to say in response to this but I raise one textual question which I address to him rather than to the mover of the amendment. In Amendment 22, in the fifth line of subsection (1), there is a reference to “a person” in the singular. If my noble friend were minded to accept this amendment, I would be interested to know whether he feels that it would have been strengthened by the inclusion of “or persons” after “person”. It seems possible in terms of the case that the victimisation may be the work of more than one person.
Lord Young of Norwood Green
My Lords, I, too, support the thrust of what my noble friends Lord Touhig and Lord Wills seek to do with these amendments, which is to extend vicarious liability to whistleblowing legislation. This loophole has been graphically explained to us in the context of three nurses from Manchester who raised a concern about a colleague lying about his qualifications. The nurses raised their concerns within the service and the primary care trust and their concern was upheld. However, as we have also heard, the nurses were subject to bullying and harassment from co-workers. One of the nurses received a telephone call threatening her daughter and to burn down her home. As we have already heard, the case proceeded as far as the Court of Appeal, which found that vicarious liability does not exist in the Public Interest Disclosure Act as it specifically does in discrimination law.
We have also heard that shortly after the publication of the judgment the noble Earl, Lord Howe, the Health Minister, agreed that this area needs to be reviewed. Public Concern at Work reports that it routinely hears on its advice line about harassment and bullying of whistleblowers by co-workers. It is bad news for whistleblowers everywhere if those who are bullied by fellow staff members are not protected and represents yet another barrier that may inhibit workers from raising legitimate concerns, which are in the public interest, over wrongdoing by their employer. The amendment by my noble friend Lord Touhig would introduce a new clause that imposes a duty on employers,
“to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employers done on the ground that the worker has made the disclosure”.
My noble friend Lord Wills proposes a further refinement to this approach, which would be to include personal liability against workers who bully co-workers for blowing the whistle. Such an amendment is likely to have a powerful deterrent effect and will mean that those who may otherwise be tempted to victimise a colleague for blowing the whistle may think twice because of their own potential liability for doing so. Again, this is included in the relevant Equality Act, that of 2010.
These amendments have even more relevance if we look at the current circumstances where the lack of whistleblowing in recent high-profile cases—such as the Jimmy Savile scandal, the high mortality rates under Mid Staffordshire NHS Foundation Trust and phone hacking at the News of the World—suggests that much more needs to be done to encourage and, perhaps even more importantly, protect workers blowing the whistle on malpractice and wrongdoing in the workplace. Workers are the eyes and ears of any organisation and often the first to know if things are going wrong or to have suspicions about malpractice in the workplace. Workers can prevent the disaster from happening and alert their own companies and regulatory authorities to prevent health and safety dangers, financial malpractice and environmental risks that may affect members of the public.
It is over 13 years since the Public Interest Disclosure Act 1998 and we believe that it is high time that the whole system should be reviewed—we would welcome the Minister’s views on that—to identify where further protection is needed to encourage employees to speak out when they see wrongdoing taking place.
Lord Marland
Again, we are extremely sympathetic towards and supportive of each other. It is not just the Cross Benches, the Labour Party and the Liberal Democrats who are keen to get this right but the Conservatives as well. I reiterate my thanks to the noble Lord, Lord Touhig, and Public Concern at Work, with which we are working very closely on this issue. I also thank the noble Lord, Lord Wills, for his input, even though we have not had the pleasure of discussing this subject outside this Room—something that I should like to do in future. I am jolly glad that we included the NHS provision in the previous amendment, because some progress seems to have been made there in view of some of the absolutely ghastly stories that have been referred to.
My noble friend Lord Brooke of Sutton Mandeville brought up a very important point. I am told that under the Interpretation Act “single” means “plural” when necessary, so I do not think that we would need to amend that in the amendment.
I have had wide-ranging discussions with the noble Lord, Lord Touhig, and Public Concern at Work across the whole piece, and those discussions have covered Amendments 23 and 23F, which we will be coming to in a few minutes. We are very conciliatory on all this, and on Amendment 23F, in particular, both parties have formed a set of words to deal with the issue of good faith and so on. I think we have found satisfaction with Public Concern at Work and with the noble Lord, Lord Touhig, so perhaps I may look at the issue as a whole.
We need to be careful when going down this route with Amendments 22 and 23. The truth is that the absence of vicarious liability and whistleblowing is not a loophole because there is legislation that provides for it, and it provides for both the employer and the employee. I am struck, as I always am, by the point made by the noble Lord, Lord Borrie, about the employee having protection as well as the employer. That is fundamental. Indeed, they would both be protected under the Protection from Harassment Act 1997; that is the legislation that they would return to in order to claim their rights. Therefore, they have the right protection in this area. It is a strong law that, sadly, has not encapsulated all the whistleblowing issues, but nothing is ever entirely encapsulated. However, whistleblowers have an absolute right and this amendment would put in another level of protection, which is not in the Bill because it already exists.
We should be looking at improving the guidance on this issue. I have instructed my officials to look at the guidance that we are putting on the government website to show where the rights of recourse are and what rights the employer and the employee have under the interpretation of the Protection from Harassment Act. This will be on our gov.uk website. On the basis that we will have an ongoing discussion between now and Report, I hope that the noble Lord will feel confident about withdrawing his amendment for the time being.
Lord Wills
Can the Minister clarify something for me? I am very grateful for his openness and willingness to carry on a discussion about this but I should be grateful to know the Government’s position on what Lord Justice Elias said in the Manchester case, which we have heard about. I accept that it is a qualified statement but he said he accepted that the claims lawyers,
“may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament”.
On the facts of that case, is it the Minister’s view that whistleblowers are or are not inadequately protected?
Lord Marland
I do not have a view because I do not have enough knowledge of the subject. As the noble Lord rightly said, he is quoting a small piece that I am unable to form an opinion on because I do not have enough evidence to support one view or another. However, I shall be happy to respond to the noble Lord on that issue. It is a perfectly reasonable question but it is too specific for me at the moment, I am afraid. I would need to take legal advice on it because I am not qualified in that area. I know that that is not a satisfactory answer but I hope that the noble Lord, Lord Touhig, will withdraw his amendment.
Lord Touhig
My Lords, I thank all noble Lords for their contributions. I echo the point made by the Minister; this issue is supported across the House. We are all in the debt of Richard Shepherd MP, who pushed hard to secure this legislation. When I was dealing with it a year or so before, I was not successful, but I should like to put on record the huge support I had from one Iain Duncan Smith, who worked very hard with us to try to ensure that this legislation became law.
I understand some of the Government’s worries and concerns. We have had a useful meeting with the Minister—I have already thanked him for that—and his officials but, at the end of the day, the real prize would be a complete review of the Public Interest Disclosure Act. Aneurin Bevan once said that our principles remained constant but our policies, like tools, have to be reworked with each generation because they get worn out with use. We need to review and revise the Public Interest Disclosure Act.
I hope the Minister and his officials will feel able to continue the dialogue, not only with me but with other noble Lords and Public Concern at Work, because we can improve this legislation by the time we get to Report and Third Reading. With that hope and aspiration, I beg leave to withdraw the amendment.
Lord Touhig
“Removal of requirement for protected disclosures to be made in good faith
(1) The Employment Rights Act 1996 is amended as follows.
(2) In section 43C(1) (disclosure to employer or other responsible person), omit “in good faith”.
(3) In section 43E(b) (disclosure to Minister of the Crown), omit “in good faith”.
(4) In section 43F(1)(a) (disclosure to prescribed person), omit “in good faith”.
(5) In section 43G (disclosure in other cases), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.
(6) In section 43H (disclosure of exceptionally serious failure), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.”
Lord Touhig
My Lords, Amendment 23 is supported by my noble friends Lord Wills and Lady Dean of Thornton-le-Fylde and by a good friend to everyone on all sides of the House, the noble Lord, Lord Low of Dalston. I have been a Member of the House for less than three years and—I am sure I am not alone in saying this—I could not have had a better friend to encourage and support the things we share in common. I think I speak for people on all sides of the House in that respect.
The amendment seeks to remove the good faith test. It is essentially a tidying-up amendment which needs to be read in conjunction with the public interest test that the Government propose in Clause 15. We have tabled the amendment as a means of reducing the number of hurdles that an individual has to jump in order to succeed under the Public Interest Disclosure Act 1998, as enacted into the Employment Rights Act.
As Clause 15 stands, an individual who brings a whistleblowing claim would have to answer at least four questions. They would have to show, first, that they had made a protected disclosure under one of the categories set out in Section 43B of the Employment Rights Act, which includes information about criminal offences, environmental dangers, health and safety issues, miscarriages of justice and the breach of legal obligation.
They would have to show, secondly, that it was their reasonable belief that the protected disclosure was in the public interest and, thirdly, that they have made a qualifying disclosure, the tests of which vary according to whom the individual discloses the information to. The lowest test for disclosure is where an individual raises a concern internally or with those who are legally responsible for the workplace, and the highest is where an individual raises a concern with an external body—for example, an organisation such as Greenpeace or any part of the media. Individuals need to show that they meet one of the preconditions in the Act and whether the disclosure was reasonable in the circumstances, paying attention to the seriousness concerning to whom the disclosure is made and whether there has been a breach of confidentiality. Fourthly, such individuals will have to show that they have made the disclosure in good faith, which has been interpreted by the Court of Appeal as meaning that the predominant motive for raising concern should be in the public interest.
Individuals would need to show that they had fulfilled all the above conditions to be protected. To have an additional public interest test is simply an unnecessary further hurdle. I am sure that we could all give examples of people being deterred from blowing the whistle. One of my motivations for becoming involved in this issue many years ago was that there were seven reports of ferries sailing with their bow doors open before the “Herald of Free Enterprise” went down. A young lady who left working for an outward bound centre in Dorset raised concerns about its practices, and a number of youngsters lost their lives some time later. I often refer to a young girl who was a student of 16. She had a job on a delicatessen counter in a major supermarket where she discovered that the manager was changing the sell-by dates on cooked meats and other things, putting public health at risk.
There are many cases which I am sure we could all repeat, so we need not put a further barrier in the way of people blowing the whistle when something is wrong. Given that Clause 15 proposes a public interest, it would be simpler to remove the good faith test entirely. This amendment would, in effect, be a counterbalance to Clause 15. I beg to move.
Lord Low of Dalston
My Lords, I strongly support the amendment and hope that I will be worthy of the kind remarks of the noble Lord, Lord Touhig, in referring to my support a few moments ago.
I cannot muster the same forensic analysis as the noble Lord has treated us to but, in my view, the matter is simple. If we leave the good faith test in the Act and add to it the public interest test, which the Government want to add to the legislation, we shall simply be doubling the hurdles that the whistleblower has to clear. When Parliament passed the Public Interest Disclosure Act, it did not insert a public interest test in the legislation. Good faith was seen as the appropriate safeguard, and Dame Janet Smith in her report on the Shipman inquiry commented that it would perhaps make sense if the good faith test were replaced by a public interest test. The Government are acceding to that suggestion but they are leaving in the good faith test. I submit that with this new public interest test inserted in Clause 15, whistleblowers would need to show both that they had the reasonable belief that their disclosure was made in the public interest and that, with the good faith test, their predominant motive for making a disclosure was in the public interest. That creates an additional hurdle for the whistleblower to clear and a requirement to satisfy a sort of double public interest test.
Removing the requirement of good faith, as proposed in the amendment, would simply restore the law to its former balance as between the whistleblower and the organisation, and refrain from imposing additional tests on the whistleblower. Retaining the two tests would unnecessarily complicate the law, requiring the whistleblower to satisfy different tests with different standards: in the one case reasonable belief; and in the other, that there is no ulterior motive. So the amendment would simplify the law, which is in danger of becoming overcomplicated, and clarify and simplify the protection for whistleblowers. I urge the Committee to accept it.
Lord Wills
My Lords, I, too, have added my name to the amendment and would like to say just a few words in support of it.
As we have heard, the new test proposed in Clause 15 attempts to remedy a loophole created by the case of Parkins v Sodhexo Ltd. Most people agree that that loophole should be closed but, in doing so, the Government risk creating a new barrier to whistleblowers, adding new complexity to a legal framework which can already be daunting enough for those wishing to expose wrongdoing. The amendment proposed by my noble friend Lord Touhig is an attempt to remedy that by removing the “good faith” test and, as he explained, to rebalance the legislation back towards protection of the whistleblower.
In doing that, as we have just heard from the noble Lord, Lord Low, my noble friend is following the recommendations of Dame Janet Smith in the Shipman inquiry, who said that in her view the words “in good faith” could be omitted from the Public Interest Disclosure Act. She argued:
“The three tiered regime of the PIDA, with its incrementally exacting requirements, should afford sufficient discouragement to those minded maliciously to raise baseless concerns”.
She continued:
“If the words ‘in good faith’ were removed from the PIDA, the test under the PIDA would be brought more closely into line with the test for ‘malice’ in defamation proceedings. It would seem to me to be desirable that the tests should be as close as possible so that a person thinking of making a report can be safely advised about his/her position in respect of both types of proceedings”.
I know that the Government share the view of everyone on the Committee that everything possible should be done to encourage the exposure of wrongdoing, and I hope that even at this relatively late stage, they will feel able to accept what is a modest and sensible proposal to that end. If, for whatever reason, they do not, I would be grateful if the Minister could explain why the Government reject the arguments of Dame Janet Smith. Why do they not accept that the three-tiered regime, with its incrementally exacting requirements, affords sufficient discouragement to those minded maliciously to raise baseless concerns—especially as they are remedying the loophole created by the case of Parkins v Sodhexo Ltd? Secondly, can the Government explain why they think that it is not desirable for the tests in the Act to be brought more closely in line with the test for malice in defamation proceedings?
Having said all that, I understand that the Government are engaged constructively in discussion with Public Concern at Work. I hope that they may feel able to accept the compromise amendment which I have tabled as Amendment 23F. That recognises that, for whatever reason, the Government are not keen to accept Amendment 23 but might be prepared to accept an amendment which removes good faith as an issue in assessing liability but retains it as a consideration in assessing remedies.
As I am sure the Minister will be aware, precedent has been established with the Polkey reductions, which are used in allowing for unfair dismissal damages to be reduced where there has been contributory negligence. Amendment 23F is a compromise which will at least mitigate the problems with the status quo by ensuring that motive will not play a central role in securing protection for whistleblowers. Although the Minister may not be able to give a definite statement on this now, I hope that he can reassure us that he expects that he will be able to reach a form of wording which will be satisfactory to all sides in a compromise amendment.
Lord Young of Norwood Green
My Lords, I shall speak briefly to Amendments 23 and 23F, because people who are far more expert in these areas have already forensically examined them. My noble friends Lord Touhig and Lord Wills, have already explained the reasoning behind them. They raise the important issue of how a broad public interest test would interact with the existing good faith test.
When Parliament passed the Public Interest Disclosure Act, it did not place a public interest test in the legislation, choosing instead to define the categories of wrongdoing under which disclosures in the public interest disclosure action fit. Good faith was seen as the appropriate safeguard.
If the public interest test is to be considered at all, it is crucial that it is considered in conjunction with the test of good faith. With the Government’s new test proposed in Clause 15, whistleblowers would need to show that they had reasonable belief that their disclosure was made in the public interest. Later there is the good faith test that their predominant motive for making a disclosure was in the public interest, creating, in effect, a double whammy of double public interest. Amendment 23F, proposed by my noble friend Lord Wills, would that good faith would become a consideration only at remedy stage. There is already a precedent for this, similar to the Polkey reductions used in allowing for unfair dismissal damages to be reduced where there has been contributory negligence.
The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, I hate to interrupt the noble Lord, Lord Young, but there is a Division in the Chamber and therefore, unless he can draw his remarks to a very speedy conclusion, we will adjourn now for 10 minutes.
Lord Young of Norwood Green
I can. As I was saying, I am grateful to my noble friends Lord Touhig and Lord Wills for tabling both the amendments, which provide the Committee with an opportunity to debate the proper application of the good faith test in the context of a new public interest test, which we are extremely concerned should not present a double barrier to workers who blow the whistle. We look forward to hearing from the Government on this and welcome the Minister’s assurances on further consultation.
Lord Marland
My Lords, a lot of what has been said was said in relation to the previous amendments. I am struck by the remark of the noble Lord, Lord Touhig, about the Public Interest Disclosure Act being looked at again. I had probably better be careful what I say but if I blink it is in sympathy. That is not for this Bill or for this moment, but it is a valid point. I am grateful for everything that the noble Lord, Lord Low of Dalston, said as well.
As I said earlier, we are in a number of discussions with the noble Lord, Lord Touhig, and Public Concern at Work, within which we would be happy to embrace the noble Lord, Lord Wills. We are coming up with a form of words that is going through the ministerial process for approval at the moment. The form of words that we desire has been agreed, in principle, between the two groups but it needs ministerial sign-off. We will be going through that process before I can be clearer on that issue. On the subject of Dame Janet Smith’s report, we do not reject her findings at all. We believe that motive is a relevant issue and we are also working with Public Concern at Work on that.
Both these amendments are worthy of consideration and we are considering them, as we are the previous amendments. If I can slightly keep my powder dry for the moment, I am not able to give the Committee a concrete answer except that it is going through the appropriate channels to try and resolve the issue. In the next few weeks—before Christmas, I hope—I may be able to discuss with noble Lords the outcome and agree a way forward, which will help us by the time we get to Report. On that basis, I hope that the noble Lord will withdraw his amendment.
Lord Touhig
My Lords, again, I am grateful to colleagues who took part in the debate and in particular to the Minister for his response. It is the season of good will; I am sure that we may have some further good will before we reach Christmas itself but I have no doubts that there is a willingness on all sides to work together here to try to make better legislation. When I had a Private Member’s Bill, I certainly found that the more pre-legislative scrutiny we had the better Bills we made. The way that we are debating this, at the end of the day, better legislation will be coming out of it where whistleblowers are concerned. With those few remarks, I beg leave to withdraw my amendment.
“Protected disclosure: blacklisting
(1) Section 2 of the Public Interest Disclosure Act 1998 (right not to suffer detriment) is amended as follows.
(2) After inserted subsection (1), insert—
“(1A) A person has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by an employer on the ground that they have made a protected disclosure.
(1B) Actions under subsection (1A) by a employer relate to—
(a) arrangements made for deciding to whom to offer employment; (b) the terms on which an employment offer is made;(c) failure to offer employment.””
Lord Young of Norwood Green
My Lords, thousands of construction workers have been secretly blacklisted and denied jobs on building projects such as the London Olympics. Individuals branded as troublemakers for being members of a trade union or for raising concerns in the workplace over important issues such as health and safety had their names passed to more than 40 construction firms. In his evidence to the Scottish Affairs Select Committee last month Mr Ian Kerr, who ran the consulting association responsible for gathering the names of thousands of workers, told the committee that he went to radical bookshops and political meetings to gather information, saying:
“I would have had a file on the Socialist Workers Party. I had a file on the National Front. Any organisation that seemed to be jumping up and down about construction, it was my role to keep tabs”.
The committee heard that trade union activity, health and safety concerns or standing up for colleagues was enough to blacklist a worker, leading to work drying up. My colleague, the shadow Business Secretary, Chuka Umunna, has also raised concerns over whether blacklisting is going on for Crossrail, the new £16 billion rail network.
The construction blacklisting scandal exposed in 2009 highlighted a gap in protection for job applicants. At present, if a prospective employer accesses a blacklist or becomes aware of a job applicant’s whistleblowing history and decides not to give them a job on that basis, the applicant would have no course of action. The 2010 blacklisting regulations deal only with lists of individuals who have been involved in trade union activities. The Equality Act provides protection at the point of recruitment and we think it is vital that the right message is sent to employers that discriminating against whistleblowers at this point is unacceptable.
The amendment calls for the Public Interest Disclosure Act to be brought into line with the Equality Act 2010 and to make clear that individuals who blow the whistle will continue to have protection under the law against blacklisting by future employers on grounds that they have raised legitimate concerns over wrongdoing at previous employers. I beg to move.
Baroness Donaghy
My Lords, I was the author of a report on construction fatalities a couple of years ago and I spent a lot of time with both employers and employees on that issue. During the course of my report it became known that a company was keeping records of its former employees—it was in all the papers—and the trade unions concerned asked me to include something about that in my report. Although I was very sympathetic and met a number of the people involved who had been blacklisted and had not worked for years in the construction industry, I did not feel that I could put that in the report because I had to be clear what caused fatalities in the construction industry—that was my brief. You could extrapolate and say that if you prevent people reporting genuine health and safety dangers it will cause risk in the industry and is likely to cause fatalities. However, as I prepared the report in a pragmatic way and had to have absolute proof—we commissioned research on this—I did not feel that I could make any recommendations in that respect.
I met a number of what I regard as good construction employers, some of whom were embarrassed to be on the list of people who paid this company. I asked them about it and they said it was an administrative error and they did not realise that they were still paying. You have to sometimes accept in good faith what people are saying. In the past 15 years they have achieved a much better record on health and safety and it is no coincidence that health and safety was often talked about in the run-up to the Olympics. I pay tribute to the Labour Government and the continuing work of the coalition Government in making sure that there was not a single fatality on the Olympic site. It was a fantastic achievement. The good employers say that it is not only an issue of reputation: if you are hard-nosed about it and you have a fatality on site, the site will be closed for the whole day. So it is not in their interests to have an unsafe building.
I have met employers who do not have quite that view. They claim that they have a right to pay someone to find out about troublemakers and poor workers. When I put it to them that this list had been proved to be completely inaccurate—it had even got the names wrong in some cases—they would shrug their shoulders and say that it was just bad luck.
I spent a whole Saturday with a group of workers who had been blacklisted from the construction industry. To say that the effect on them was traumatic is putting it very mildly. Most of them were now working on a self-employed basis with small companies, some of them for 20 to 25 years. They had never worked for a large company. The ones who were trade union activists were probably realistic about why it had happened; they were fighting for their fellow workers and were regarded as trouble-makers, which was why they had been blacklisted. Others had no idea. They did not know why their names had been put on the list and could not understand it.
This is a very murky world and I accept that it is incredibly difficult to prove whether these lists exist. They are like will-o’-the-wisps; they move around. One company will close but they will make jolly sure that another company opens up somewhere else. It is incredibly difficult to prove. The worker himself finds it very difficult to prove. All I can say is that the impact on individuals and their families is profound. I wish that I could have done something in making recommendations in that report but it would have been dishonest of me. If there is any way that we can make life better for some of these workers who do not know why they are not being employed, I hope very much that we can do so. I support the amendment in that spirit.
Lord Marland
The noble Baroness speaks with great authority on the subject. Of course, it is a difficult grey area. As we know the Employment Relations Act 1999 (Blacklist) Regulations 2010 already protects individuals but I am struck by what the noble Lord, Lord Young, and the noble Baroness, Lady Donaghy, said. If I may I shall take this away and give it some further consideration outside this Committee and perhaps come back on Report. The noble Lord, Lord Young, is looking surprised now—in fact, stunned—but it is Christmas time. I hope on that basis that he will withdraw his amendment.
Lord Young of Norwood Green
That is why I do not play poker. I am taking into account that it is a Christmas gift from the Minister. I accept his intention in good faith, which is a phrase we have been using, and I beg leave to withdraw the amendment.
“Disclosures exempt from confidentiality duties: supplementary provisions
After section 203(3)(f) of the Employment Rights Act 1996 (restrictions on contracting out), insert—“(g) the employee or worker must be advised of their rights under section 43J of the Employment Rights Act 1996”.”
Lord Young of Norwood Green
This amendment would place a positive requirement on lawyers advising in the settlement of claims that they advise claimants about their rights to be freed from any contractual agreement with their employer not to disclose certain information where they legitimately seek to make a protected disclosure. Little attention has been paid to the provision in Section 43J of the Public Interest Disclosure Act which outlaws any contractual clause that prevents workers from raising a public interest concern. The cases of Dr Kim Holt and Great Ormond Street Hospital relating to the baby P case—where the trust offered her £80,000 as compensation if she left quietly—and of the former inspectors at the Care Quality Commission giving evidence to the Mid Staffordshire inquiry highlight the need for greater attention to be drawn to Section 43J of the Public Interest Disclosure Act and for there to be tougher enforcement.
The amendment simply seeks to improve awareness among workers over their rights as whistleblowers by placing a simple requirement on any legal officer advising them over their case to make them aware of those existing rights under the Public Interest Disclosure Act. I therefore hope that the Government will look favourably on this amendment as a simple change that would help improve the application of the existing Act. I beg to move.
Lord Marland
My Lords, I am grateful for this probing amendment. However, I am not convinced that we need to go this way because we already have legislation in place. Section 43J of the Employment Rights Act 1996 provides that any term in an agreement which precludes a worker from making a protected disclosure is void. Furthermore, all lawyers have a duty of care to advise their clients properly on all aspects of the law, whatever the situation. That is their duty of care and, if they do not apply it, they may be struck off.
I understand the motive behind the amendment but I trust that the noble Lord will acknowledge that there is legislation in place and that it would just be putting icing on the Christmas cake, which in this case is a double layer and not entirely necessary. Therefore, I hope that the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
I will take note of what the noble Lord said and give consideration to that view to see whether we need to return to this issue on Report, or whether we can clarify the matter further in our consultations. On those grounds, I beg leave to withdraw the amendment.
“Proceedings in public interest disclosure cases
(1) After section 8 of the Employment Tribunals Act 1996 (procedure in contract cases), insert—
“8A Publication of information
(1) Where proceedings include a claim under the Public Interest Disclosure Act 1998, the president shall, within 28 days of receipt of the claim, publish electronically and without charge the names of the parties and the relevant regional office.
(2) A person who is not a party to those proceedings may obtain from the tribunal a copy of such documents from the proceedings as he may obtain under the Civil Procedure Rules where proceedings are brought in a court.
(3) In this section, “President” has the same meaning as in section 7A(3).”.”
Lord Young of Norwood Green
My Lords, Amendment 23D aims to improve transparency around whistleblowing cases that have been settled privately where it is in the public interest that this information should be in the public domain. I should like to put on the record from the outset that I would not wish to see this introduced without further protections against blacklisting of whistleblowers.
Since the cross-party initiative that brought the Public Interest Disclosure Act into force there has been considerable ongoing debate and discussion around its operation and effect. This has not always been informed by reference to analysis of cases, in part because they have not been readily accessible.
Claims made to the employment tribunal, including those made under the Public Interest Disclosure Act, are not made public, unlike in civil courts. At present, three-quarters of PIDA claims settle in private, with no information in the public domain about the underlying wrongdoing. The lack of openness is exacerbated by the widespread concern that many employers seek to gag employees from making protected disclosures. It is frequently reported in the public sector that independent reports into concerns raised by a whistleblower are kept from the public eye.
In 2008, my noble friend Lord Borrie tabled an amendment on this but the Government’s reasons for rejecting it were twofold: first, a fear of ambulance-chasing lawyers contacting the parties; and, secondly, untested allegations being in the public domain. As a compromise, the Government brought in a system of regulator referral, where claimants can elect to send their claim forms to a person prescribed under PIDA—for example, systems regulators such as the FSA or the CQC. This is inconsistent with the principle of open justice and is not ideal as it puts pressure on whistleblowers to withhold consent, or some individuals will use their consent as a bargaining chip in settlement negotiations. Where consent is withheld, the underlying concern will be hidden from public view.
There is no uniform way for regulators to deal with such concerns and some regulators do not even know of this provision. It is strange that a law which is all about promoting transparency and accountability in the workplace should have its use shrouded in secrecy. Given the proportion of PIDA claims which are settled, it is entirely probable that a public concern may lie unaddressed, buried in a claim and shielded from view.
The amendment should be coupled with the blacklisting provisions, thereby limiting negative consequences for individual workers. It is important that there should be open justice in whistleblowing claims and that it should be brought into line with the Civil Procedure Rules. I beg to move.
Lord Borrie
I hope the Government are positive about this amendment. Secret justice is inherently evil unless there is some very strong argument the other way such as public security. When this is not the case, the Government will have a very difficult job convincing us that things are all right as they are.
Lord Marland
I have a nasty feeling that I am going to disappoint the noble Lord, Lord Borrie, who of course speaks with a wealth of experience. I have observed tribunals over time, and what I have seen is that when names are published and the press get hold of it, they often put an imbalance into the equation. I believe that giving advance warning of the case means prejudice may build up against either side. This can often be seen in press reports on tribunal cases and I think that is unfair. Of the tribunals I have observed—although not been involved in—that have been reported in the press, there have been many times where I would say at the end of the day the press have taken one side or the other and not given a balanced view—and that is what becomes of a public airing.
No one is saying for a moment that this process should not be transparent but people are saying that there should be fairness. This applies to both parties. We accept the transparency issue but I am afraid that, on this basis and from the experience that we have had, and my experience in particular, I do not think it is fair on either party. As such, it is not an amendment that particularly finds favour despite the fact that we seem to have agreed on most things today and will doubtless continue to do so. In the spirit of Yuletide, I hope the noble Lord will agree—I am looking at his face now because he is playing poker—to withdraw his amendment.
Lord Young of Norwood Green
I cannot say we are particularly happy that Christmas has ended early with the Minister’s response. The best I can say is that we will take this one away and reserve the right to return to it on Report. I beg leave to withdraw.
Baroness Turner of Camden
“(aa) where the claimant, on the advice of the Judge, withdraws a part or the whole of the claim, any deposit shall be repaid”
Baroness Turner of Camden
My Lords, this is a fairly simple and straightforward issue. Currently, when a judge decides that a claim has little reasonable prospect of success he can order a claimant to pay a deposit of up to £1,000 as a condition of their claim proceeding. However, judges can issue dispute orders only when they consider that an entire claim is weak. Clause 16 would enable judges to impose a deposit where they consider that just part of a claim is weak. However, the TUC, to which I am indebted for this briefing, believes that employment tribunals already have sufficient powers to deter weak and vexatious claims, and therefore that this measure is not necessary. The introduction of fees would mean that claimants would be required to pay significant sums in order to access an employment tribunal.
Rather than increasing the use of deposit orders, the Government should provide that where a claimant decides to withdraw a claim, or part of a claim, on the advice of judges, then the relevant fee that the man or woman has already paid should be returned. That seems quite fair to me and I hope, therefore, that the Government will be prepared to agree to this simple measure. If the claimant has already paid a deposit, takes the advice of a judge and withdraws, he should get his money back. That is quite a straightforward proposal and I hope the Minister will be prepared to accept it.
The Earl of Glasgow
I apologise for interjecting at this stage. My issue is a little bit different but, after a lot of consideration, I did not know where I was going to put it. I consider it a very serious omission regarding the tribunal situation.
Two years ago I knew relatively little about employment law. As a small employer, however, I have recently—and for the first time in 35 years—been taken to a tribunal by one of my employees. This particular issue has been going on now for more than two years. I believe passionately—and this is one of the reasons for this Bill—that we should try to make these tribunals as unnecessary as we possibly can. In my case it is completely or very nearly unnecessary and I think that it is also a very great waste of money.
The Government’s intention is to try to make tribunals as unnecessary as possible. I am very much in favour of having ACAS involved and giving it the extra strength—which is part of the Bill already—to try to make them unnecessary. However, there is an elephant in the room which no one has addressed and which has purposely not been put into the Bill, and that is the question of discrimination.
One of the main reasons why claimants go to a tribunal when they could easily have settled at an earlier stage is that if they can prove discrimination, they can get something like 10 times as much compensation as they would have got if they had settled in the first place. To give an example again from my own case, the lady who I employed was laid off at four months. She thought that it was unfair that she was laid off and thought that someone else should have been laid off instead of her. She came with her union representative and talked to me about it. I made a deal with the union representative that I was going to pay her £1,500 and that was going to be the end of it.
About two or three days later she came back again and said that she was not satisfied with what her union representative had recommended and that she was going to go to a tribunal. It became clear to me that the reason why she was going to a tribunal was that she thought that she could prove discrimination. Discrimination in this case was that she thought that someone other than her should have been laid off and also that, as she had a disabled son, we were not taking enough consideration of her disabled son. This case is still carrying on. It has been over two years and we still have not resolved it. It strikes me as unbelievably wasteful that this thing should not have been settled a long time ago. It is because of this discrimination issue.
I think that the Government and the Minister have decided that they do not want to involve discrimination in this because discrimination is governed by European law. I do not think that we are ever going to be able to cut down drastically the number of people going to a tribunal unless we address this issue of discrimination. A lot of lawyers, or the representatives of some of these claimants, are deciding to go to a tribunal because they think that they are going to get a lot more money because of discrimination. I ask the Minister to consider including at a later stage at least some reference to address this problem of discrimination.
Lord Marland
I am grateful to the noble Earl for giving me advance warning that he was going to raise that issue, and I am happy to deal with it in a moment. First, however, I must deal with the point raised by the noble Baroness, Lady Turner.
I think that there is some misunderstanding here. It is already the case that where a deposit is paid it is always refunded to the paying party unless a cost order is made by a judge. That is the case. Refunds happen whether a case continues to judgment or is withdrawn part way through the proceedings, so there is always the case for recourse. In fact, the Government have accepted Mr Justice Underhill’s recommendations that there should be much more flexibility in the deposit-paying order regime. I hope that the noble Baroness is content that that deals with that issue. I do not know how this misunderstanding happened, but we can certainly talk further about it afterwards.
We recognise that there has been a trend for discrimination claims to obtain large awards. They are trailed as discrimination claims because people think they can get the sympathy of the judge in advance or during the case, because discrimination is not an attractive thing to be accused of—or to suffer from, much more to the point. Therefore, we as a Government are committed, working with the employment tribunals, case-by-case, to see how we can improve that. Obviously, as the noble Earl says, if we follow the procedure of going to ACAS first—and of course ACAS has many more resources and greater teeth, as applies to various earlier amendments—we can deal with this much more vigorously and much more fairly, as the noble Earl rightly seeks. I am happy to discuss the matter with the noble Earl later, as are my officials, but, on the basis of what I have said to the noble Baroness, I hope that she will withdraw her amendment.
Lord Young of Norwood Green
Thinking that I was back in my TUC days, I was almost tempted to make a point of order. The noble Earl was stretching what you can do with an amendment by introducing something that had nothing whatever to do with it. If I look back, I suppose that I have been guilty of that transgression occasionally, but I think that that was taking it a bit too far, as it was for the Minister to respond to it. I say that seriously because, if we are to have a debate about discrimination, let us have a proper debate about it, for which we are prepared. We, too, could evidence all sorts of things.
Lord Marland
The noble Earl gave me notice that at some point he would be raising this issue. We have debated a whole range of issues and I do not think that we need to be unfair and limit any particular issue. I was happy to take the question. I have dealt with it and we will continue to deal with it. I totally agree that it is not in the context of the amendment, but we have had a few things that have not been in the context of amendments. We are a charitable group here. The noble Lord is playing poker again now but he will be in a charitable mood as it is Christmas, and that is why I was happy to deal with the amendment.
Lord Young of Norwood Green
I will not pursue this further but I maintain my point. We roam far and wide in dealing with amendments but, if we want to do something as serious as that, it ought to be on the basis of either an amendment or a debate. I say no more than that. I leave it to my noble friend Lady Turner to deal with her amendment.
Baroness Turner of Camden
I thank everyone who contributed to this small debate. Of course, it is not about discrimination at all. It is quite irrelevant to introduce discrimination in a debate on an amendment which simply says that, if someone pays the deposit and does not proceed with the case because they accept the advice of a judge, they ought to get their money back. It is as simple as that. It has nothing to do with discrimination at all. I see that the noble Earl accepts that.
The Earl of Glasgow
I apologise for bringing it up. I tried two or three times to think of a place where I could bring it in as I thought it was important to do so. As we are getting to the end of the tribunal issues, I thought it was the only place where I could do it. I apologise.
Baroness Turner of Camden
Certainly. As my noble friend said, if we want to have a discussion about discrimination, there will be the opportunity to do so during the passage of the Bill, in which case we would want to prepare for it and ensure that the views of this side of the House were properly considered. The amendment is not about discrimination, as I think the Minister accepts. I am interested to hear what he has to say and I shall of course read it with great interest. In the mean time, I beg leave to withdraw the amendment.
Lord Gardiner of Kimble
My Lords, this may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.
House of Lords
Cycling: Infrastructure
(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Berkeley
To ask Her Majesty’s Government what proportion of the Highways Agency’s budget is allocated to infrastructure for cycling.
Earl Attlee
My Lords, the Highways Agency works with cycling organisations to provide parallel routes, safe access and crossing points to the strategic route network. These schemes are funded within the agency’s portfolio of small improvement schemes, on which the expenditure is approximately £50 million each year across the portfolio. Provision for cyclists is also a consideration of the agency’s major schemes. The specific investment relating to cyclists is therefore difficult to disaggregate.
Lord Berkeley
I am grateful to the Minister for that Answer and I congratulate the Government and TfL on the investment they have recently announced for cycling infrastructure. However, does he agree that possibly there is a need to go further? There is a poll in the Times today, coincidentally, which shows that 25% of the respondents think that segregated cycle lanes would make people cycle more. It also shows that only 2% of journeys in this country are by cycle compared with a figure of about 25% to 35% in Belgium, Holland and Denmark. Does he agree that it is time to look at reallocating space on the roads for cycles and providing much greater investment alongside that?
Earl Attlee
My Lords, the views of respondents to any survey are obviously important. We should not disregard them. We should take account of them. Segregation has its benefits because you will be able to reduce the number of accidents far more effectively. However, there is the issue of economic use of the road space and the business case if you want such a scheme. In London, these are matters for Transport for London.
Lord Taverne
My Lords, does the Minister accept that the bicycle is the most efficient machine ever invented for converting energy into motion and that the bicycle could be accurately described as a green car that can run on tap water and tea cakes and has a built-in gym? Does he therefore agree that it makes sense to base policy for private urban transport on the motto, “Two wheels good; four wheels bad”?
Earl Attlee
My Lords, I agree with my noble friend. One of the most important aspects of the use of the bicycle is the health benefits. That is why the Government support cycling and why the previous Government did exactly the same thing.
Baroness King of Bow
My Lords, we are all aware of the dangers of cycling, especially if you live in Tower Hamlets where, on Friday, the 14th cyclist to die in London this year was pronounced dead on Commercial Road. I want to ask the Minister about another danger facing cyclists. I refer to the high levels of exhaust fumes and particulates that they inhale. Can the Minister hazard a guess as to whether, say, a half-hour commute on a bicycle in rush-hour traffic is the equivalent of one cigarette a day or 20 cigarettes a day? If he is not sure—because I am not—would he be willing to write to me with the latest research evidence and government guidance so that cyclists can be assured that their healthy lifestyle is not, in fact, a fast track to lung cancer?
Earl Attlee
My Lords, the noble Baroness will be aware that the previous Mayor of London introduced a lower emissions zone for London to tackle the level of emissions. I accept that they are too high, but everyone is working to reduce the levels.
Lord Quirk
“Two legs good” is by all means better than “Two wheels good”. Can we not have some guarantee of the safety of pedestrians on the pavement as well as of course support for the need to protect cyclists?
Earl Attlee
My Lords, although the Government support cycling, we do so only where it is legal. It is important that cyclists do not ride their cycles on the footpath. Enforcement is an operational matter for the police.
Lord Hughes of Woodside
My Lords, although we must do everything possible to encourage the safety of cyclists, does the Minister agree that cyclists themselves can do much to help their own safety? For example, in the evening, when it is dark, one hardly sees the bicycle light flashing. Furthermore, cyclists seem to wear the darkest of clothes, which makes them almost invisible. Should not something be done to educate them, first, to have decent lights and, secondly, to wear fluorescent jackets so that they can be easily seen?
Earl Attlee
My Lords, the Highway Code advises cyclists to wear appropriate high-visibility clothing all the time and make sure that their lights work. The noble Lord is right. Cyclists can do a lot to make themselves less vulnerable.
Baroness Gardner of Parkes
My Lords, is the Minister aware that, in London, a great many of the fatal accidents occur when people are dragged under as large vehicles turn left, particularly cement vehicles and waste disposal vehicles carrying skips? The front wheel hits a person, but it is the back wheel that kills them. If a bar was put along the side to prevent the bicycle being dragged under the vehicle it would save many lives. Is there any thought of the Government encouraging that?
Earl Attlee
My Lords, there are already regulations in place that require side guards to be fitted to the majority of heavy goods vehicles. However, construction vehicles are exempt. The European Union is looking at the regulation of side guards and will probably reduce the number of exemptions.
Lord Davies of Oldham
My Lords, following on from the previous question, is the Minister not concerned that the accident rate for cyclists is increasing alarmingly, especially in London? Cyclists have a particular problem in coping with large roundabouts where there are no regulated lanes. Several of the deaths have occurred at such roundabouts. Why do the Government not take up the programme that the Times has launched, “Cities fit for cycling”, in which it says that in order to get dedicated cycle lanes and improve our safety record we need £100 million a year spent on cycling?
Earl Attlee
My Lords, I assure the noble Lord that we are paying close attention to the Times campaign for the very reasons that the noble Lord points out. This is of course a Question about the Highways Agency, which has a range of local network management schemes to make improvements where cycle routes cross the strategic route network or there are segregation problems.
Baroness McIntosh of Hudnall
My Lords, given that most people driving on the roads probably took their tests quite a long time ago—I have to say that I certainly did—is the noble Earl confident that the current methods of testing young drivers take sufficient account of the dangers to cyclists that drivers represent, particularly in view of the fact that no matter how much investment is made in cycling routes, cyclists will have to share the road with drivers for at least some of the time?
Earl Attlee
The noble Baroness makes an extremely important point. I can assure her that the Driving Standards Agency adjusts the test to make sure that it properly reflects the needs of cyclists. In addition, I should point out to your Lordships the need regularly to read the Highway Code because its contents change, particularly in respect of road markings relating to cyclists.
United States Budget: Economic Impact
(11 years, 5 months ago)
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Lord Roberts of Conwy
To ask Her Majesty’s Government what assessment they have made of the effect on the United Kingdom economy of the outcomes of the “fiscal cliff” discussions in the United States of America.
Lord Newby
My Lords, the Office for Budget Responsibility, which is responsible for producing independent economic and fiscal forecasts for the UK economy, based its forecasts last week on the assumption that fiscal policy will be tightened in the US by between 1% and 2% of US GDP. This, in turn, assumes that the US Congress will reach a budget settlement by the end of the year and that the fiscal cliff will be avoided.
Lord Roberts of Conwy
Is my noble friend aware, as I am sure he is, that many believe that unless the end-year fiscal crisis in the US is averted, involving as it does some hundreds of billions of dollars’ worth of tax rises and spending, there is a risk that the US could return to recession, and the prospects for our exporters to the United States could be very gloomy indeed? Such prospects are already gloomy in the eurozone and other countries where lower growth is anticipated. Is there a specific remedy for that situation, should it develop?
Lord Newby
My Lords, I agree with the noble Lord that the US economy is extremely important to our exporters. Last year, we exported £80 billion of goods and services to the US, which amounted to 16% of our total exports. However, perhaps I have watched too many episodes of “The West Wing” but I suspect that a deal on the US budget will be done in time, albeit at the last minute.
Lord Bilimoria
My Lords, it is estimated that if the US falls off its fiscal cliff, its GDP will fall significantly. Will the Minister admit that, following the Chancellor saying in the Autumn Statement that deficit reduction will now take three years longer, we in this country have already fallen off our own fiscal cliff?
Lord Newby
No, my Lords, the situation is quite the opposite. The fact that the Government took decisive action in 2010 to effect a fiscal consolidation over a number of years—and then flexed that, given the severe headwinds that we faced from the eurozone—means that we are not faced with a fiscal cliff and we are now looking to a period of growth next year that will be higher than that anticipated in, for example, the eurozone.
Lord Davies of Oldham
My Lords, it is all right for the Minister to wish the Americans well, but why do the Government not emulate them? Is he unaware of the fact that the American economy has been growing at 2%, while we are teetering on the edge of our own cliff towards a third recession?
Lord Newby
Earlier this year, in relation to the US and UK economies, he said that,
“our objectives are common, which is we want to make sure that we have … governments that are lean, that are effective, that are efficient, that are providing opportunity to our people, that are properly paid for so that we’re not leaving it to the next generation”.
Baroness Kramer
I ask the Minister not to emulate the US fiscal cliff and to go for certainty in British fiscal and economic policy. However, does he not agree that British exporters should be careful not to overreact to either the fiscal cliff or the eurozone crisis? In the Autumn Statement, there was more than £1.5 billion in additional government support for exports; should not businesses both small and large be seizing those opportunities—and seizing them now?
Lord Newby
I absolutely agree. The challenge now is for exporters to continue exporting in markets where they already do that. For example, our exports to the US this year have increased by 4% and are therefore still exploiting existing markets. However, in addition, the key is getting more companies exporting to the newer markets. That is why the increases in exports to China, Brazil and India over the past two years have been so significant.
Lord Soley
The Minister referred to the decisive action in 2010. Surely what the Government were doing at that time was talking us into a deeper recession than the one we were already going into. Secondly, does he not recognise that without growth we will not get out of the problems we are in? Historically, cutting deficits does not really work unless you have high growth as well. We do not have that and it does not look as though we will get it under the current policies.
Lord Newby
My Lords, if the Government had not adopted a credible fiscal policy in 2010, it is almost certain that interest rates in the UK would now be significantly higher than they are, as they are in much of the eurozone. Bear in mind that every 1% increase in interest rates means £12 billion extra in mortgage payments. This would have been have been a huge gamble that would almost certainly have failed had we not taken decisive action in 2010.
Lord Forsyth of Drumlean
My Lords, is the lesson that we need to learn from both sides of the Atlantic not that if Governments live beyond their means and raise the tax burden too high, growth disappears—a lesson that my noble friend Lord Lawson taught us in the 1980s and which we need to relearn?
Lord Newby
My Lords, the key challenge for Governments, either in this country or on the other side of the pond, is to ensure that there is a credible fiscal framework and a competitive economy so that businesses can invest. That is what the Government have been seeking to achieve.
Lord Tomlinson
My Lords, if the economy is doing as well as the noble Lord suggests, does he regard the threats from the rating agencies as being a vote of confidence?
Lord Newby
My Lords, the rating agencies, as we all know, have an unblemished record in dealing with businesses and countries. For those countries that have seen their credit rating reduced, including the US, there has been virtually no impact on their ability to borrow.
Baroness O'Cathain
My Lords, can we not realise that trade is a two-way thing? It is import substitution and exports. We should encourage more import substitution in all our purchasing in this country. It is never mentioned and there is no reason why some of the wonderful British goods that are exported to earn foreign currencies should not be bought by people here, thereby reducing our imports.
Lord Newby
My Lords, I absolutely agree with my noble friend, and it is very important that we do all we can to support new initiatives, such as the one being led by my noble friend Lord Alliance to reinvigorate the textile industry in the north-west, where there now appears to be the prospect—if we get it right—of creating almost 250,000 jobs in textile manufacturing for the first time in a generation.
Armed Forces: Medical Services
(11 years, 5 months ago)
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Lord Trefgarne
To ask Her Majesty’s Government what are the respective numerical strengths of the medical services of the Royal Navy, Army and the Royal Air Force, and what proportion of those personnel are reservists.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, I am sure the whole House will wish to join me in offering sincere condolences to the family and friends of Captain Walter Barrie, 1st Battalion The Royal Regiment of Scotland, who was killed on operations in Afghanistan recently. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude in which they face their rehabilitation.
On the Question, in April this year the numerical strength of the naval medical service was 1,650, of whom 60—just under 4%—were reservists. The strength of the army medical service was 8,040, of which 2,840—35%—were reservists, and the strength of the Royal Air Force medical service was 2,120, of which 190—9%—were reservists. Members of all three medical services, regular and reserve, are making extraordinary contributions to our medical capability in Afghanistan, and I pay tribute to them.
Lord Trefgarne
My Lords, I am grateful to my noble friend for that helpful reply. If it is the policy—which I believe it is, and I support it—to increase the use of reservists in the medical services of our three Armed Forces, it is important that we have a good supply of experienced and trained medical personnel, particularly from the National Health Service. Is the Minister satisfied that the National Health Service, which itself is pressed in many areas, will be able to supply the number of personnel that will be required in future years, and that no unnecessary restrictions will be placed in their way?
Lord Astor of Hever
My Lords, I agree with my noble friend that we will need a good supply of reservists in future. NHS employees are free to join the reserves without any interference from their employer. If they come from a trust that does not have reserve-friendly HR policies—and these trusts are very rare—they can still join the reserves, but in the worst case they may have to take leave to train. We recognise, as did the previous Government, that my noble friend highlights a serious problem. The issue is being addressed by the reserves consultation document. We are consulting as widely as possible to ensure that we have the right relationship with employers and reservists to sustain these changes in future. We need to understand what difficulties employers face in releasing their staff and to do our best to mitigate them.
Lord Rosser
My Lords, we, too, offer our sincere condolences to the family and friends of Captain Walter Barrie. His death is another all-too-frequent reminder of the enormous sacrifices still being made by members of our Armed Forces in the service of our country.
The report of the public inquiry into the death of Iraqi civilian Baha Mousa found that military guidance on key ethical questions was not provided to regimental medical officers at the time. Is the Minister now satisfied that if there were to be an increase in the proportion of medical personnel who were reservists, appropriate guidance would always be given to them prior to deployment, and that they would be as able as regular medical officers to resist any pressures to prioritise their obligations or loyalties to the military over their ethical duties to patients? Further, will the medical services available to members of the Reserve Forces post-deployment be the same as the medical services available to members of the Regular Forces post-deployment?
Lord Astor of Hever
My Lords, in answer to the noble Lord’s first question, I am pretty certain that I can give him that assurance. Like a number of noble Lords, I have been to Afghanistan and seen the hospital at Camp Bastion. I talked to a number of reservists. They work to an incredibly high standard. The NHS is very grateful for what its personnel pick up there and are able to take back to their respective trusts.
Lord Ribeiro
My Lords, will the Minister explain to the House how the expertise of the Defence Medical Services in Afghanistan, many of whom are reservists, can be maintained and used to the benefit of the NHS when the drawdown occurs in 2014?
Lord Astor of Hever
My noble friend asks a very important question. I know that he was out in Afghanistan last year and saw the very good work that our regular and reservist medics do there. They have saved a lot of lives. There are two possible answers to my noble friend’s question: first, sharing experience through teaching in training in trauma centres and, secondly, clinical placements with coalition partners in areas of conflict.
Lord Palmer of Childs Hill
My Lords, from these Benches I express condolences at the losses referred to by the Minister. What work are the Government doing to examine the common features of the forces’ medical services so that we may stretch resources further by removing unnecessary duplication, perhaps in areas such as procurement or training?
Lord Astor of Hever
My Lords, several initiatives are under way to remove duplication by the single services’ medical services. The first, scheduled to be delivered on 1 April next year, is the new defence primary healthcare project. The current Royal Navy, Army and Air Force primary healthcare systems will start to combine to form defence primary healthcare under the command of a two-star medical officer. The aim is to develop and create an organisation made up of Royal Navy, Army, Royal Air Force and civilian medical personnel working jointly to benefit all the patients they serve, to safeguard the quality of healthcare for military personnel, their dependents and entitled civilians, and to maximise the forces’ generation capabilities.
Lord West of Spithead
My Lords, I agree with the Minister about the huge pride we have in our medical forces across the board. Not only are they at the cutting edge of skills to look after people who, very sadly, have suffered major injuries, but they have also shown immense bravery. Indeed, two women who are probably about half my height have managed to win Military Crosses in the past three years in looking after people for whom they were responsible. We should feel a huge debt of gratitude and pride in them all for that. We also have an amazing centre of skill at Birmingham and at Headley Court in terms of people recovering. Will the Minister tell us what will happen if Scotland separates? Bearing in mind the complexity of how this works, it will be extremely difficult. How will that work out?
Lord Astor of Hever
My Lords, I agree with the noble Lord in the first part of his question. I have seen a number of these reservists and regulars several times in the hospital at Camp Bastion. I am in awe of what they do and the lives they save—it is amazing work. In answer to the noble Lord’s second question, we do not envisage that this is going to happen.
Banking: Regulation
(11 years, 5 months ago)
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Lord Barnett
To ask Her Majesty’s Government what action they propose with regard to the regulation of the banking industry.
Lord Newby
My Lords, Her Majesty’s Government have committed to fundamental reform of financial regulation in the United Kingdom through the Financial Services Bill, which received its Third Reading in the House last week. Further regulation of the banking industry will be contained in the Banking Reform Bill, which is currently the subject of pre-legislative scrutiny by the Parliamentary Commission on Banking Standards.
Lord Barnett
Has the noble Lord seen what was said by the present Governor of the Bank of England last week that this can be dealt with without even bothering with regulation? First he criticised the banks for hiding £60 billion of debts and then he went on to suggest that banks should increase their capital reserves immediately. Does the Minister agree with that, or does he agree with the banks that say that if they increase the capital reserves they cannot also lend as the Chancellor has suggested? Which one of those does the Minister agree with?
Lord Newby
My Lords, the fact that the governor can make statements at the moment that are aspirations and have no direct impact shows why the new regulatory architecture, particularly the Financial Policy Committee, which is a new body designed specifically to look at these things, is so important. I am sure that they are reflecting on his views and will be opining on them very shortly.
Lord Sharkey
My Lords, regulation will surely provide for penalties for those who break the rules. However, when it comes to the massive mis-selling of pensions, endowments or PPI policies, the FSA has confirmed that in the past five years not one single bank employee has had disciplinary action taken against them. Does the Minister believe that that is right, and can he reopen the issue with the FSA?
Lord Newby
My Lords, one of the general problems that we are grappling with is that bankers seem to think that they live in a different world to the rest of us and that they should be able to avoid not just censure but charges if they have done something that is criminally wrong. That is why in the recent Financial Services Bill we introduced new provisions to deal with people who have manipulated the LIBOR rates so that, when the whole episode is fully looked into, if criminal action is necessary, it will for the first time be able to be taken against people who have cheated the system.
Lord Peston
My Lords, bearing in mind the global nature of the whole financial services sector, and certainly of the banking sector, in the Government’s opinion does any central bank or other financial regulator, acting on its own, have any chance of success? Must not the future basis of regulatory policy be one of international co-operation between the regulators and the central banks?
Lord Newby
Yes, my Lords, I completely agree. One of the things that the banking crisis has demonstrated is that the banks understand the international situation better than Governments understand it. One of the things that we have been trying to do, both through the EU and internationally, is to close that gap. No doubt the noble Lord has seen the article in the FT today by Paul Tucker from the Bank of England and Martin Gruenberg, the chair of the Federal Deposit Insurance Corporation in the States, which looks specifically at how you deal with resolving problems concerning the largest systemically important banks in the world.
Lord Lawson of Blaby
My Lords, while the noble Lord, Lord Peston, is undoubtedly correct that international co-operation is desirable, will the Minister give an undertaking that we shall not hold back on what needs to be done simply because international co-operation may not be forthcoming or, even if it is, it may not be adequate?
Lord Newby
My Lords, I absolutely agree. That is why we have been in the forefront of bringing forward plans under which banking problems can be resolved and why, under the Banking Reform Bill, we are looking at having a ring-fence around retail banks so that we do not have the problems that we have had in the past. This will go ahead, whatever happens internationally. I hope very much that there will be international action, but action that is based very much on the British model and with British leadership.
Lord McFall of Alcluith
My Lords, Glass-Steagall, which governed the global prudential system, was more than 30 pages, Basel II increased that tenfold to 350 pages and Basel III is now 600 pages. Does this not tell us that the system is governed by complexity and opacity and that the desire to game it increases? Is there not a case for simplifying the system and having leverage play a greater role in the regulatory framework? The need for structural change, irrespective of what is happening elsewhere in the world, is urgent in the UK and we should get on with it.
Lord Newby
Yes, my Lords, I agree. Basel is indeed that number of pages, while I think that the Dodd-Frank Act in the States is more than 2,000 pages and is so complicated that there are real questions about whether the institutions will ever be able to implement it. Getting back to what I was saying about banking reform here, one of the key reasons for having a ring-fence is to have a simpler structure under which the retail bank is segregated from the more complicated and casino elements of the system. We think that that will bring benefits for consumers as well as bringing greater stability to the system as a whole.
Lord Pearson of Rannoch
My Lords, are the Government aware of the previous Government’s Written Answer of 21 July 2009 to the effect that the overall supervision of our entire financial industry, including our banking industry, had already been handed over to Brussels, leaving the Government here with only day-to-day control? Does it therefore really matter much what the Government come up with here?
Lord Newby
My Lords, I am afraid that I was not aware of that comment by the previous Administration and I do not recognise it as a reflection of the way that we run our banking system.
Business of the House
(11 years, 5 months ago)
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Lord Strathclyde
That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 11 December to enable the Police (Complaints and Conduct) Bill to be taken through its remaining stages on that day; and that Standing Order 46 be dispensed with on Tuesday 18 December to enable the Small Charitable Donations Bill to be taken through its remaining stages on that day.
Partnerships (Prosecution) (Scotland) Bill [HL]
(11 years, 5 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
A Second Reading Committee considered the Bill in the Moses Room on Tuesday 4 December. I therefore beg to move this Motion formally.
Crime and Courts Bill [HL]
(11 years, 5 months ago)
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17:10 - Division on Amendment 113C - Ayes: 206 / Noes: -1 - Amendment 113C agreed.
18:58 - Division on Amendment 113G - Ayes: 32 / Noes: 156 - Amendment 113G disagreed.
Baroness Kennedy of The Shaws
My Lords, this amendment stands in my name and that of the noble Lord, Lord Lester of Herne Hill. It seeks to limit the televising of court proceedings to the Court of Appeal and the Supreme Court. Your Lordships may recall that I expressed my view at Second Reading that cameras in the courts are a total folly except in very limited circumstances. I have no problem with filming proceedings in the Supreme Court or the Court of Appeal, where matters of law, principles of human rights or constitutional issues of long-term significance are debated and judged. However, it is a serious mistake to introduce cameras into criminal courts; this whole issue should be approached with caution. We are being persuaded that this is a very circumscribed use of cameras and the rationale is that it will bring transparency to, and increase confidence in, the justice system. I believe it will ultimately have the very opposite effect.
There has been lobbying for years to get cameras into courts. It should be recognised that television companies are not really interested in filming in the Court of Appeal or the Supreme Court. They want to get into the criminal courts or the libel courts—the places where the dramatic stuff of life is dealt with. They want rape, blood and gore. They want weeping victims, lying witnesses and unrepentant villains in the dock. They want to get into the courts where the salacious and the violent are dealt with in detail. They insist that they are interested only in transparency, when I am afraid that their real interest is voyeurism. In the same way that sex, drugs and rock and roll sell newspapers, they pull in viewing figures for television, too.
Court television in America made the man who introduced it a billionaire in no time, and lawyers and senior judges there would say that it drove down standards in the courts and decreased public confidence. The public in the end see edited snapshots of proceedings and think they have watched a trial; then they are vitriolic about how stupid the jury has been or how utterly stupid the judge has been.
An experiment was conducted in Scotland 20 years ago of filming a whole trial. Because Scotland is the one place in the United Kingdom where there is no law forbidding cameras, that was possible without any change in the law. The plan was abandoned when the senior legal profession in the whole of our nation saw the product and realised that there were very serious problems about fairness and enormous risks to justice. I would like our senior judiciary and politicians to go back to that footage and see why it is not a good idea.
This Bill does not ostensibly open the door of the courts to wholesale filming immediately. It is saying that cameras should be let into the higher courts and other courts, such as the criminal courts, for the giving of judgments and the passing of sentences. The public deserve, it is said, to know why a man got 10 years and not more; the public should see the judge passing sentences on criminals; people can cheer from their living rooms as crooks get their comeuppance; and they can knit like the tricoteuse at the guillotine as the judge says, “Take her down”.
However, the reality is actually damaging for justice. The Minister will no doubt say that there will never be filming of witnesses or jurors in cases, but I assure the House that while the intention now may be to stick to judges’ sentencing remarks, that is not the endgame sought by television programme-makers. We often talk of slippery slopes in this House but this one is a sheer drop. As soon as sentencing is covered on television, there will be complaints that the public did not get to see the defendant’s face when he heard his fate or that the remarks made little sense without hearing what the prosecution and defence lawyers had said in argument beforehand. So it will go on, with further and further encroachments sought.
Lord Lester of Herne Hill
My Lords, I am not a criminal lawyer and have none of the experience that the noble Baroness, Lady Kennedy of The Shaws, has, but I sat as a criminal judge—grotesque though that may seem—in the days when I was a recorder. I cannot claim much greater experience than that, but I support the amendment as a member of the Joint Committee on Human Rights.
As the noble Baroness, Lady Kennedy, has said, this amendment was drafted by the committee so it is a JCHR amendment, and our report deals with our reasons in detail. In paragraph 60, our conclusion says:
“We do not see the justification for the width of the order-making power in clause 23(1) of the Bill, which, as it stands, authorises the filming and broadcasting of witnesses, parties, crime victims, jurors and defendants in court proceedings. We urge a much more cautious approach. Before any extension of this power we recommend that the Government conduct a much more comprehensive public consultation, carry out a more detailed impact assessment in the light of that consultation and conduct a review of the operation of the power after an elapse of years. In the meantime, we recommend that the Bill be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings, as the Government currently intends”.
I am also cautiously conservative on this issue because I do not believe that criminal trials are best conducted in televised goldfish bowl.
Lord Pannick
My Lords, I do not share the concerns expressed by the two previous speakers. The broadcasting of court proceedings will enhance public understanding of our justice system, which in general works efficiently and fairly. There is also the possibility that allowing in the cameras may illuminate those areas of the law that are much in need of reform, a result that I would have thought law reformers as distinguished as the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, would welcome.
So what if broadcasters focus on sensational cases? That is what print journalists do and we do not exclude them from the courtroom. Amendment 113 would confine broadcasting to appellate proceedings but, if the Lord Chief Justice thinks it appropriate, why not allow the broadcasting of a judicial review application that raises issues of importance? Such applications normally involve no witness evidence and often raise issues of law of considerable constitutional importance. Of course there should be no broadcasting of the evidence of witnesses, and jurors’ faces should not be shown, but I cannot understand why there should be no possibility of the broadcasting of the judge’s sentencing remarks at the end of a criminal trial. There are many cases where, at the end of the criminal trial, the judge is speaking not only to the defendant or other persons in court but is seeking to communicate to the public at large. The judge should be assisted to do so.
The noble Baroness, Lady Kennedy of The Shaws, made what I respectfully submit was a quite extraordinary suggestion that judges need to be protected because their words may be misrepresented. She also suggested that judges need anonymity in the community at large. I doubt very much whether there are many judges—or, indeed, many noble Lords—who think that our judges need or deserve such protection.
In any event, Amendment 113 is entirely unnecessary because your Lordships will see that Clause 23 will not come into effect without the agreement of the Lord Chief Justice, who no doubt will carefully consider the details of any scheme to allow broadcasting of court proceedings. For the same reason, Amendments 113ZA and 113ZB in this group are also unnecessary in seeking to impose conditions on the broadcasting of court proceedings. I am content to proceed on the basis set out in Clause 23, that the broadcasting provision would come into force only,
“with the concurrence of the Lord Chief Justice”.
It would be far better to let him—or possibly, after next October, her—decide on the detail of the broadcasting scheme.
For the same reason, Amendment 120B, requiring a resolution from both Houses, is unnecessary. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill—for both of whom I have the highest regard—are the 21st century equivalents of the 18th century Scottish judge Lord Eskgrove. When a court reporter wrote down the terms of one of his judgments being delivered in court, Lord Eskgrove complained:
“The fellow takes down my very words”.
Lord Lester of Herne Hill
Would the noble Lord address the points raised by the Joint Committee on Human Rights, rather than referring to me as an 18th century gentleman?
Lord Pannick
My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.
Baroness Butler-Sloss
My Lords, I apologise for arriving late at this part of the debate. I did not propose to speak and hold no strong views about this amendment, but I have to rise just to deal with a point made by the noble Lord, Lord Pannick. He said that judges neither need nor deserve any protection. That is true in general, but I think he has overlooked the fact that certain judges get death threats. There are groups of judges, of which I happen to be one, who during their time as a judge received a number of death threats. In my case they came both from people who could recognise me because they had appeared before me in court and from those, such as Fathers 4 Justice, who not only made death threats against me but, I must tell your Lordships, also threatened to kidnap my dog, which I thought was much more serious than the death threat against me. More serious than the threats that either I or the family court judges receive are those made against judges in terrorist trials. They absolutely need and deserve protection, so I take issue with the noble Lord, Lord Pannick.
Lord Pannick
I entirely agree that judges deserve all the protection necessary in those circumstances. However, the press and broadcasters are perfectly entitled to publish photographs of the judge who has heard the terrorist trial or any other sensational case. This amendment would have no impact in that respect.
Baroness Kennedy of The Shaws
Does the noble Lord accept that there is something different about the moving camera? There is a famous book by Christopher Isherwood, Goodbye to Berlin, in which the first line is: “I am a camera”. The reason why he starts that way is because he is saying: “I am providing you with a subjective view from my eyes—my edited account of what was happening in the 1930s during the rise of Hitler in Berlin”. He was pointing up the fact that the camera is very subjective. Does the noble Lord agree with that?
Lord Pannick
Of course there are differences, but no difference that could possibly justify these amendments. Noble Lords will know that the proceedings of our Supreme Court are broadcast virtually every day that the court sits. None of us has any knowledge of that; it has caused no adverse effects and I cannot understand the noble Baroness’s concerns.
Earl Attlee
My Lords, we need to be a little careful about adhering to the rules of Report.
Lord Mackay of Clashfern
My Lords, the noble Baroness has referred to something that happened about 20 years ago in relation to experiments in Scotland. As she said, judges there were able to make arrangements for televising trials without any change in the statute law because there was no statute restricting that possibility. A considerable number of cases were televised under that arrangement. The television authorities put together a programme because, interested though they were in Scotland, it was nothing in comparison with the interest they had in proceedings in England, for reasons which perhaps an 18th-century Scottish judge might have speculated about. Anyway, that was the fact.
Baroness Hamwee
My Lords, it is very rare indeed that I do not wholly agree with the noble Baroness. As for my noble friend, Lord Lester, I do not even stop to assess whether I agree with him because I know that I should. However, as the noble and learned Lord has just mentioned, we in Parliament are used to our proceedings being recorded—we barely notice the cameras now—and edited. I am constantly taken aback by the number of people who watch the Parliament channel and our proceedings at great length—they must be terrible insomniacs, but they do. It may be that they prefer to watch and listen to a large chunk of a particular matter rather than have the proceedings edited by that very respectable and useful programme, “Today in Parliament”, or the print media. I support giving that opportunity with regard to the courts.
I recently attended a sentencing. I was there accompanying somebody who was concerned with the case. Waiting for my friend afterwards, I listened to the quite considerable number of print journalists there, writing up their stories. They had been handed a copy of the judge’s sentencing remarks but barely referred to the copy. They checked one or two comments with each other instead of bothering to go back to what they had been given, and I could hear how they were editing the remarks to make a sensational story.
I am very happy to rely on the Lord Chief Justice and the judges in particular cases where, as I understand it, the ability to make particular restrictions will still continue. Of course, editing—being a camera—is subjective. I have agonised about this quite a lot and I spoke rather in the other direction at the previous stage, but I have come down to believing that this quite cautious move is the right one. Judges are less tempted than politicians to make off-the-cuff remarks about major moves forward. I am therefore very happy that the Lord Chief Justice is so much involved.
Lord Beecham
My Lords, I understand the points made by my noble friend and by the noble Lord, Lord Lester. This is an innovation in English court procedures and we should approach it with a degree of caution. The case for opening up the judicial system to more public information and understanding is well made, and to that extent I concur with the remarks of the noble Lord, Lord Pannick. I was less happy with the second part of his speech, which addressed the amendments in my name. I endorse what the noble Baroness, Lady Hamwee, has just said about discretion on the part of the trial judge to decide whether or not to permit broadcasting. That ought to be a significant safeguard, but it is not quite good enough to rely just on the Lord Chief Justice. I say “just”; although one has every confidence in the holders of that office, this is, as I say, a new departure and there is a wider interest to be considered. The amendments in my name and that of my noble friend Lord Rosser try to establish the principles both in relation to any decision to extend court broadcasting and regarding the matters to be considered when a court gives a direction, precisely to meet some of the objections and difficulties envisaged by my noble friend Lady Kennedy and the noble Lord, Lord Lester.
Amendment 120B requires any statutory instrument to be subject to the affirmative resolution procedure. I am in slight difficulty here because, when these matters were raised in Committee, the noble Baroness, Lady Northover, said that the government amendments would make the provisions under what was then Clause 22 and is now Clause 23 subject to the affirmative procedure, as recommended by the Delegated Powers and Regulatory Reform Committee. She also referred to what was then Clause 29, which again required amendments to primary legislation to be subject to the affirmative procedure. I may have missed them but I cannot actually see those references in the Bill. They may be disguised under some form of words that does not immediately disclose their presence, but I would be grateful if the noble Lord, Lord Ahmad, could confirm that the affirmative procedure would apply so that it would not simply be a matter of a decision by the Lord Chief Justice but, if there were to be significant changes, particularly to extend the range of matters that could be broadcast, then the affirmative procedure would apply. If that were the case, we would certainly be content to support the Bill in its present form. Perhaps, with the assistance of the Box, he may be able to help me and, more importantly, your Lordships, to come to a conclusion about whether the Government’s intentions are currently reflected in the Bill.
Lord Ahmad of Wimbledon
My Lords, it is always interesting to examine such issues. I have listened to the speeches and the arguments, although I was not in your Lordships’ House when the arguments were put forward for the televising of Parliament. I listened, as I always do, to the noble Baroness, Lady Kennedy, who spoke about words being put into people’s mouths and perhaps being interpreted differently. I suppose that every now and again parliamentarians, and politicians in particular, suffer that consequence, which is well understood.
This has been a wide-ranging debate. As we have seen, again there is strong opinion on both sides of the argument. As the noble Baroness, Lady Kennedy, said, her amendment would limit court proceedings to appellate proceedings and, in effect, would require the Government to return to Parliament before broadening court broadcasting to other types of court proceedings, such as those in the Crown Court. I am also aware, as my noble friend Lord Lester of Herne Hill pointed out, that this amendment was specifically recommended by the Joint Committee on Human Rights in its report of the Bill. I would, of course, like to thank the Joint Committee for its report. I am also glad to read that the committee agrees with the Government’s objective of making justice as apparent and as publicly accessible as possible.
We have heard about 18th century judges, although I am minded not to travel back in history to that extent. However, in 1924, the Lord Chief Justice, Viscount Hewart, said:
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
I believe that sentiment underlies the Government’s view.
The noble Baroness, Lady Kennedy, talked about caution. The Government recognise that as regards court broadcasting. It is our view that any order made under Clause 23 will require, as has been mentioned by various noble Lords, the agreement of the Lord Chief Justice. But that is just one lock. It will also require the approval of the Lord Chancellor and will be subject to scrutiny by both Houses of Parliament under the affirmative procedure. Therefore, court broadcasting will be introduced in a safe and proportionate manner. That is akin to putting not one or two locks on the door but to putting three locks. It will take three people to open that door.
However, we can go one step further. We believe that this triple lock, combined with existing reporting restrictions and the additional provision to allow judges to stop the filming and broadcasting of court proceedings to ensure the fairness of proceedings and to prevent any undue prejudice, will ensure that the interests of victims and witnesses, who are most important, as well as jurors, defendants and other parties, are fully protected. I hope that this will address the concerns of not only the noble Baroness but also the noble Lord, Lord Beecham, in relation to the court’s requirement to consider when to allow or to prevent broadcasting.
When the noble Baroness, Lady Kennedy, mentioned that moving cameras changed people’s actions, they certainly changed my action. As she mentioned it, I looked towards the camera and the camera moved. There is some credence and fact behind that statement.
The Government announced plans in September of last year to allow the broadcasting of judgments and advocates’ arguments in cases before the Court of Appeal and, over a longer period, to allow broadcasting from the Crown Court but to limit this to the judge’s sentencing remarks after conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice. Let me assure your Lordships’ House that we have no plans to extend court broadcasting beyond these two sets of circumstances. We believe that, once Parliament has approved the principle of broadcasting selected court proceedings, the details safely can be set out in secondary legislation. I would remind the House that the Delegated Powers and Regulatory Reform Committee did not take issue with this approach as long as the secondary legislation was subject to the affirmative procedure, which it now is. This means that the Lord Chancellor may make an order only under this clause which has been approved by both Houses. That being the case—I refer in particular to the comments made by the noble Lord, Lord Beecham —Amendment 120B is not needed as that ground is covered already by Clause 30(4)(f). As with all primary legislation, these provisions will be subject to post-legislative review three to five years after Royal Assent.
Baroness Kennedy of The Shaws
I thank the Minister for his response. I am not sure that there could be enough locks to satisfy my concerns. Superficially, this can be very attractive, and it can be discussed in the context of transparency and accountability, but they can be veneers for something much riskier. The camera is not the same as the human eye. The noble Baroness, Lady Hamwee, described watching as reporters for the print media took no notice of the written transcript of the judge’s sentencing remarks but filleted out the bits that they knew would be sensational. I can assure her that those who edit television programmes will follow exactly that process.
The camera cannot capture all that is happening as the human eye can. Currently, television reporters, like press reporters, go into the court and listen then come out and report. Having been in court and watched what happened, the reporter becomes the witness, just like the print journalist. The human eye is different from the camera. The camera cannot pick up tension, smell fear or catch those minute twitches of the lips or the eyelid that often tell you so much. Worst of all, the person behind the camera is editing as he goes. The editor back at the station edits further and the news programme will snip out the choice bits of footage for the headlines. I really warn everyone in this House that new technology will then mean that it will be played and replayed over and over and over again. I am afraid it will not stop with sentencing remarks. It will continue with erosions and demands being made and the judiciary feeling under pressure to comply to not be seen as old-fashioned, 18th century gentlemen.
It is easy for people who do not practise in a criminal court to underestimate the power and the effect of this on our justice system. I regret that there is not enough support in this House for my amendment and I therefore feel obliged to withdraw it, but I do so giving a warning about the serious implications of taking cameras into criminal courts and what it will do to our justice system.
Lord Pannick
“Abolition of scandalising the judiciary as form of contempt of court
(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.
(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.”
Lord Pannick
My Lords, this amendment seeks to abolish the crime of scandalising the judiciary in England and Wales. I am delighted that the Minister has added his name to this amendment. The amendment is also signed by the noble Lord, Lord Lester of Herne Hill, who has played a leading role in arguing for reform of this area of the law. The amendment is also in the names of the noble and learned Lord, Lord Carswell—a former Lord Chief Justice of Northern Ireland—and the noble Lord, Lord Bew.
I can explain the reasons for this amendment very briefly. It is no longer necessary to maintain as part of our law of contempt of court a criminal offence of insulting judges by statements or publications out of court. The judiciary has no need for such protection. As the noble and learned Lord, Lord Carswell, explained in Committee, the wise judge—and he, if I may say so, was a very wise judge—normally ignores insults out of court. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a similar point in a case he decided, as he may recollect. Judges, of course, are as entitled as anyone else to bring proceedings for libel, and some have done so.
The law of scandalising the judiciary could have been left in the moribund state in which it has rested for many years. However, the Attorney-General for Northern Ireland unwisely chose earlier this year to seek to breathe life into it by bringing a prosecution, later dropped, against Peter Hain MP for some critical comments he had made in his autobiography concerning a Northern Ireland judge. That prosecution had two main consequences. First, it substantially increased the sales of Mr Hain’s book and, secondly, it led to this amendment.
When we debated this subject in Committee on 2 July, the Minister gave a cautious welcome to the amendment but said, very properly, that the Government wished to consult on the matter. As a result of the debate in this House, the Law Commission expedited the publication of a consultation paper on 10 August in which it proposed that the offence of scandalising the judiciary should indeed be abolished.
I emphasise that the amendment will not affect other aspects of the law of contempt of court and in particular the powers of the judge to deal with any disruptions during court proceedings. I also emphasise that the amendment is not designed to encourage criticism of the judiciary. Much of the criticism to which judges are subjected is ill informed and unsubstantiated. However, even where criticism is unjustified, it should not be a criminal offence.
The amendment will not affect the law in Northern Ireland or Scotland, in the latter of which the offence is known as “murmuring judges”. I understand that in Northern Ireland more consultation is required. It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland. I hope that the Minister can give us an indication of when consultations with Northern Ireland will be completed and a decision reached.
Meanwhile, I am delighted by the historic decision which I hope that this House will take tonight to approve an amendment abolishing the offence of scandalising the judiciary in England and Wales. As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger,
“to the degree that it is earned, rather than to the extent that it is commanded”.
I beg to move.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.
As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.
As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.
The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.
We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:
“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.
We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.
In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.
I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.
Lord Lester of Herne Hill
My Lords, I declare a former professional interest in that I acted for the Northern Ireland Human Rights Commission in the aborted contempt proceedings in relation to Peter Hain and his publisher. I am extremely grateful to the Attorney General for Northern Ireland for his entirely misguided decision to move for committal because, but for that, I would not be standing here in support of the amendment. We owe everything to the Attorney General because it was that which caused me to contact the Law Commission and the Government, and to discuss the matter with my friend, the noble Lord, Lord Pannick, in the first place.
It is important that the Government have decided to do what we have just heard from the Minister, and that is most welcome. However, I pay tribute to the previous Government, and I see the noble Lord, Lord Bach, in his place when I say this. He will remember that the other antique and archaic speech crimes of sedition, seditious libel, defamatory libel, obscene libel and blasphemous libel were all abolished by the previous Government and Parliament for similar reasons connected with free speech.
So far as blasphemy was concerned, for the reasons given by the Minister, it was decided that, although we could abolish that offence in Britain, we could not do so in Northern Ireland. We left it to Northern Ireland to do so itself, and we thought that it would be easy to do there because Northern Ireland already had a law on incitement to religious hatred that was rather stricter than what we have in this part of the kingdom. However, nothing has happened on that issue in Northern Ireland because there is institutional paralysis about doing anything of the kind. I know that this matter has concerned the Northern Ireland Human Rights Commission, and exactly the same problem arises now. Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales. However, given that two other supporters of the amendment know far more about Northern Ireland than I would ever know, I shall not say more about that matter.
I should like to make one other point. Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence. By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world. That is another reason why I am so delighted that the Government have decided to take this course.
Lord Carswell
My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.
Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.
I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.
After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.
My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.
The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.
Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.
Lord Beecham
My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.
Lord McNally
My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.
“Eligibility for assistance
(1) An accused person in criminal proceedings is eligible for assistance by virtue of this section if the courts considers that the quality of that person’s participation in and understanding of court proceedings or of the evidence given by that person is likely to be diminished by reason of any circumstances falling within subsection (2).
(2) The circumstances falling within this subsection are that the accused person—
(a) suffers from mental disorder within the meaning of the Mental Health Act 1983, or(b) otherwise has a significant impairment of intelligence and social functioning.(3) Where the court determines that the accused person is eligible for assistance by virtue of this section, the court may then give a direction under this section providing for—
(a) assistance of the accused in preparing for court proceedings and in instructing the accused person’s legal representative to be provided by a person approved by the court for the purposes of this section (“an intermediary”),(b) assistance of the accused person in understanding and participating in court proceedings to be provided by the intermediary, and(c) the examination of the accused person to be conducted through the intermediary.(4) The Secretary of State may, by regulations, make provision about the recruitment, accreditation, training and appraisal of intermediaries approved by courts under this section.”
Baroness Linklater of Butterstone
My Lords, the amendment will ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable effective participation in court proceedings and in preparing for their trial. The aim is that such defendants should be entitled by statute to the same support as vulnerable witnesses, and thus to an equally fair trial. A briefing paper, Fair Access to Justice?, for front-line staff in the criminal justice system and the NHS, explains how those who appear in court as a victim or witness are entitled to extra support or special measures to help them understand and cope with the process. At present, vulnerable defendants do not have the same entitlement and get that support only at the discretion of the court, despite the fact that high numbers are vulnerable. The amendment would restore a balance and ensure even-handedness in court proceedings for any vulnerable person, whether they are a victim or a defendant. The special measures are intended to reduce the stress of the court appearance for the vulnerable individual or witness so that he or she can give the best evidence. Hitherto, these measures applied only to vulnerable witnesses and specifically not to defendants.
Support is provided for witnesses by qualified intermediaries who are registered, accredited and trained to help vulnerable and other witnesses in court proceedings after the most stringent selection, quality assurance, regulation and monitoring procedures. The aim is to facilitate vulnerable witnesses with two-way communication in court between them and other participants so that their communication is as complete, accurate and coherent as possible. However, while the arrangements are available to witnesses, they are specifically not available for defendants except at the discretion of the court, and even then the intermediaries appointed to support them do not have to be either registered or regulated, and are paid different fees. It is possible to have an unregistered intermediary assisting a defendant while a witness in the same trial has a fully registered one who is paid more than his counterpart who represents the defendant. This is an entirely unfair and unjust arrangement that favours a witness over a defendant, irrespective of the guilt or innocence of the vulnerable parties.
The current reality is that a high number of defendants going through the courts need particular support to help them cope and understand what is going on. If they do not have this help, it can affect their ability to participate in court proceedings and compromise their right to a fair trial. There is some help for vulnerable defendants giving oral evidence only, but they are not helped during trial proceedings to participate effectively, instruct counsel or prepare for a trial.
Lord Beecham
My Lords, I hope the Minister can give a positive reply to the noble Baroness. She has made a powerful case in connection with a particularly vulnerable group for whom existing services are perhaps not adequate. I do not know whether the Minister will be inclined to accept the amendment at this stage or whether he will at least be prepared to take it back for consideration before—or rather at—Third Reading. I think that that would satisfy the noble Baroness and most Members of Your Lordships’ House and I hope he feels able to take that course.
Lord Woolf
I also urge the Minister to do what has just been urged by the noble Lord, Lord Beecham. It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates. Therefore, for the same reason, I ask the Minister to give careful consideration to this.
Lord McNally
My Lords, as the noble and learned Lord, Lord Woolf, has just told us, it is the duty of the courts to ensure that defendants receive a fair trial. It therefore may be necessary to make particular efforts in the case of defendants whose understanding is limited. To some extent it will fall to the defendant’s legal adviser, or to the judge, to help meet the needs of these vulnerable defendants. From time to time courts have asserted the right to grant such defendants the assistance of an intermediary.
Statutory provision has in fact already been made in Section 104 of the Coroners and Justice Act 2009 for certain vulnerable defendants to be eligible for assistance from an intermediary when giving evidence. A defendant would benefit from this provision where their ability to participate effectively in the proceedings as a witness is compromised by a significant impairment of intelligence and social functioning; or where they are suffering from a mental disorder within the meaning of the Mental Health Act 1983.
The Government made a decision to defer implementation of Section 104 until full consideration could be given to the practical arrangements and resource implications. Although there are no immediate plans to implement these provisions, we are continuing to monitor the situation and the resource implications of doing so. However, as I said earlier, judges have on occasion granted the use of an intermediary to assist vulnerable defendants to ensure a fair trial. In fact, guidance on the process for appointing intermediaries for defendants was issued nationally to all courts last year.
Furthermore, Part 3.30 of the Consolidated Criminal Practice Direction also provides guidance on a range of other types of support that a court may wish to offer, including that at the beginning of the proceedings the court should ensure that what is to take place has been explained to a vulnerable defendant in terms they can understand. Secondly, a trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate.
I have listened to what my noble friend said and to the interventions of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Beecham. I do not want to raise expectations as I am not sure whether I can get clearance to take this forward at Third Reading. However, I assure my noble friend that, as I have said, we are continuing to monitor the situation and are looking at the practical arrangements and resource implications of bringing in Section 104. I certainly agree to take this measure away. If I cannot bring it back at Third Reading, I will write to the noble and learned Lord, the noble Lord and my noble friend to explain why I cannot do so and what we are doing to keep this matter under review. I hope that, with those assurances, my noble friend will agree to withdraw her amendment.
Baroness Linklater of Butterstone
My Lords, I am heartily grateful to the noble and learned Lord and the noble Lord who have supported what I had to say. That support, coming from two such distinguished sources, means a very great deal to me. I hope that the Government will also pay heed to it.
I heard what my noble friend the Minister said. It is moderately cold comfort. There is none the less the possibility of further recognition of what remains quite a major injustice that is built into our system. In the mean time, I beg leave to withdraw the amendment.
Lord McNally
“Self-defenceUse of force in self-defence at place of residence
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (use of reasonable force for purposes of self-defence etc) is amended as follows.
(2) Before subsection (6) (force not regarded as reasonable if it was disproportionate) insert—
“(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”
(3) In subsection (6) at the beginning insert “In a case other than a householder case,”.
(4) After subsection (8) insert—
“(8A) For the purposes of this section “a householder case” is a case where—
(a) the defence concerned is the common law defence of self-defence,(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),(c) D is not a trespasser at the time the force is used, and(d) at that time D believed V to be in, or entering, the building or part as a trespasser.(8B) Where—
(a) a part of a building is a dwelling where D dwells,(b) another part of the building is a place of work for D or another person who dwells in the first part, and(c) that other part is internally accessible from the first part,that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.(8C) Where—
(a) a part of a building is forces accommodation that is living or sleeping accommodation for D,(b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and(c) that other part is internally accessible from the first part,that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).
(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).
(8F) In subsections (8A) to (8C)—
“building” includes a vehicle or vessel, and“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.”(5) In subsection (9) (section intended to be clarificatory) after “This section” insert “, except so far as making different provision for householder cases,”.
(6) An amendment made by this section does not apply in respect of force used before the amendment comes into force.”
Lord McNally
My Lords, I was going to say that these were technical amendments, but I am advised that they are not.
It would be terrifying to be confronted by a burglar in your own home. Mercifully, it does not occur very often, but when such a situation arises most people would say that the law should be on the side of the householder. After all, they are the ones who may have been woken up in the dead of night, made to fear for their safety or the safety of their loved ones and compelled to use force to protect themselves in traumatic circumstances. If householders end up being arrested, prosecuted or convicted after injuring a burglar, this can give rise to a public perception that the criminal justice system does not support the real victims in all of this. These amendments are designed to shift the balance of the law further in favour of householders to ensure that they are treated first and foremost as the victims of crime.
The current law, as clarified in Section 76 of the Criminal Justice and Immigration Act 2008, already says that people can protect themselves or others, prevent crime or protect property using force that was reasonable in the circumstances as they believed them to be. However, it also says that the use of force which was disproportionate in the circumstances will never be reasonable. This means that a householder who has acted honestly and instinctively to protect himself or his loved ones from an intruder could end up being prosecuted if his actions are deemed to have been disproportionate when viewed in the cold light of day. The Government feel strongly that householders, acting in extreme circumstances to protect themselves or others, cannot be expected to weigh up exactly how much force is necessary to repel an intruder. There may be a fine line between actions that are proportionate in the circumstances and those which might be regarded as disproportionate. The Government think householders should be given the benefit of any doubt and that Section 76 of the 2008 Act should be amended accordingly. As long as householders have done only what they believed was reasonable in the circumstances, it should not matter if those actions were disproportionate when viewed with the benefit of hindsight.
I am aware of criticisms that these changes will amount to a vigilantes’ charter; the Government do not accept that argument. All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.
This is not about saying that it is open season on any intruder. It is rather saying that the law will look benevolently upon any householder who, faced in his own home with the terror of someone he believes to be a trespasser, acts in a way that is reasonable in the circumstances as he believed them to be, even if the force used was disproportionate.
Noble Lords will note that the amendments are limited to householders defending themselves or others from intruders in their dwellings. The Government believe that attacks by intruders in the home cause the greatest public concern. Our home is our haven and refuge—a place where we have every right to feel safe. That is why the Government believe that householders deserve special protection. However, the provision also extends to shopkeepers who live and work in the same premises and Armed Forces personnel who may live and work in buildings such as barracks for a period of time.
We recognise that there are a range of other circumstances in which people might be required to use force—for example, to defend themselves from attack on the street, to intervene to stop crimes being committed or to protect their property. The new provision does not extend to those situations, but the current law on the use of reasonable force will continue to apply in those circumstances.
I recognise that some noble Lords might have a feeling of déjà vu as we debate these measures. We are returning to an area of the law that has been debated twice in recent years. While previous Bills clarified important aspects of the law on the use of force, the current proposals would make material changes to strengthen the rights of householders when defending themselves or others from intruders. Critics have said the changes are unnecessary because the current law provides adequate protection and householders who have defended themselves from burglars are hardly ever prosecuted. Clearly the Government take a very different view. Each case is different. Although the Crown Prosecution Service decided not to prosecute householders involved in recent cases, such as those in Leicestershire and Manchester, there might be occasions in the future where law-abiding householders benefit from these important provisions. I beg to move.
Lord Beecham
No, I want to speak now if that is all right. Thank you. Burglary is a serious crime and a particularly distressing one. The forced invasion of one’s home adds a further dimension to the effect on its occupiers. I suspect several Members of the House will have shared my experience, at least in part. My home—which, incidentally, was built by the father of the noble and learned Lord, Lord Woolf, to whom I apologise for anticipating in this debate, for reasons that I shall give later—has been burgled and my office has also been burgled once. Fortunately, little damage was done; even more fortunately, no one was present at the time. Where the householder or other occupant is present, the impact of the crime transcends distress and, too often, becomes traumatic.
I say at once that we welcome the extension of the present law to non-residential premises, such as those of shopkeepers, to which the Minister has referred. However, in relation to domestic premises, while absolutely affirming the right of residents to defend themselves and their property, we have doubts about the Government’s proposals. The amendments have been spatchcocked into the Bill at virtually the last minute, almost, it would seem, as an initiation rite performed by the new Lord Chancellor. Unlike the proposals on community sentencing, we have not had the opportunity of a general debate under the recommittal procedure. I propose therefore to treat the debate on these amendments as, in effect, a Second Reading debate, which is why I sought to speak now rather than later.
Burglary is an offence against the person as well as against property, because a break-in destroys the victim’s peace of mind by violating the safe haven of their home. The householder is not in a position to exercise calm, cool judgment. The householder is entitled to use reasonable force to get rid of the burglar; and, in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later:
“You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear”.
These are not my words—although I concur with them—but the words of the Lord Chief Justice, the noble and learned Lord, Lord Judge, commenting on the recent case of two men jailed after raiding a remote cottage, when they were blasted with a shotgun. What is significant is that his words reflect the present state of the law. Although the victims in that case were questioned by police, their Member of Parliament, Alan Duncan MP—not, I think, generally known as a bleeding-heart liberal—said:
“The police did a very good job and investigated as thoroughly as they had to when a firearm is involved”.
The first question is what the government proposal adds to the present state of the law, as enshrined by the Labour Government’s Criminal Justice and Immigration Act 2008 and the present Government’s clarification, embodied in Section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed only a few months ago. In my submission, it adds only confusion. It purports to allow the use of disproportionate force but not grossly disproportionate force. Can the Minister define, or even better exemplify, the difference between the two, especially bearing in mind the words of the Lord Chief Justice? What difference, if any, in his view would the amendment’s wording have had, for example, on the case of Tony Martin, who shot dead a burglar? What does the Minister make of the statement by Michael Wolkind QC, who represented Tony Martin? He said:
“The law already recognises that people react in a certain way in the heat of the moment”,
and argued that the law does not need changing.
The second element that the proposal might add to the Bill is, paradoxically and obviously unintentionally, a heightened risk to home owners. A study in Texas has demonstrated that the notorious “stand your ground” law, promoted by the US gun lobby and enacted in several US states, has led to more injuries and deaths being inflicted on householders and others by criminals, rather than fewer. Anyone who watched the recent TV programme on “stand your ground” would surely hesitate before opening the door to similar unintended consequences here, even allowing for the radically different gun culture that is such a blemish on American society.
There are other questions to be asked. Have the Government consulted the judiciary or the police on the proposed changes? If so, what responses have they received? If they have not consulted them, why not? Have they conducted an impact analysis? Your Lordships might think that a particularly fitting term in this instance for an assessment of the consequences of legislation. What is the evidence that the present state of the law, as defined by the noble and learned Lord, Lord Judge, is inadequate? The Minister has circulated what purports to be a fact sheet. Your Lordships might think that that document contains precious few facts and no evidence on which to base the Government’s proposals.
My right honourable friend Sadiq Khan sought information by means of Parliamentary Question on the number of home owners arrested or charged after defending their property against burglars since 1994. The answer was:
“The information on arrests is not collected centrally … It is not possible to match the arrests data to any subsequent outcomes”.—[Official Report, Commons, 22/10/12; col. 641W.]
The Guardian recently reported, after a review by the CPS, that there were all of seven cases—I repeat, seven cases—between 1990 and 2005 in which a householder was prosecuted. In other words, there is simply no evidence to suggest that the problem the Government purport to be addressing is significant in terms of numbers, whereas it is clear that neither the police nor the courts are going to fall over themselves to prosecute householders who react in the way described by the Lord Chief Justice.
Is the Minister suggesting that where serious injury or death is inflicted on a burglar—or even someone such as the man featured in a recent BBC radio programme who was thought to be a burglar but was apparently just a confused man trying unsuccessfully to enter what he thought was his own home—the police should not investigate the situation in a proper manner, not least in the interests of those whom they interview? I wait to see not only what answers to these and other questions emerge from this debate but what transpires when this Bill goes to the House of Commons.
I have no doubt that the Lord Chancellor will seek to portray himself as the champion of the victims. It is a pretty hollow claim on the part of a Government who are both alienating and cutting the police force; undermining community policing; presiding over the reduction of community support officers, who provide invaluable back-up to front-line policing; and savagely slashing or altogether removing compensation for the victims of crime by their changes to the criminal injuries compensation scheme. Those changes, I might add, were forced through the House of Commons by the process of mugging several Conservative members of the relevant committee, including John Redwood MP, a senior former Minister, and substituting placemen in the form of Parliamentary Private Secretaries—not much consideration for victims of crime in that context.
I repeat that we are at one with the intention to protect the householder and punish the burglar. We remain to be convinced that the Government’s proposals are sound in law and safe, from the perspective of the very people they are supposed to protect.
Lord Pannick
Before the noble Lord sits down, in the light of his very powerful speech, is he going to invite his Benches to enter the Lobbies to oppose this amendment?
Lord Beecham
My Lords, I am treating this as a Second Reading debate, which we could and should have had some time ago, to allow the Government the opportunity to make their case—which, it seems to me, the Minister has failed to do today—either here or in the other place, but we will not be voting on these proposals today.
Lord Woolf
My Lords, I should disclose that I presided over the case of Tony Martin on appeal. I oppose this amendment because I regard it as a very bad example of where statutory interference with the common law is wholly unnecessary. Unfortunately, like the noble Lord, Lord Beecham, my home has been burgled so I am not totally objective on these matters and know the concern that they can cause.
The position here is that nearly every word the Minister used in moving this amendment is the sort of remark that judges up and down the country would make to a jury when dealing with those very few cases in which a householder is prosecuted. I could hear myself making precisely those remarks in those days of longer and longer ago: such as saying that the person whose house was broken into, or who was attacked by a burglar, cannot be expected to draw a fine line between what is permissible and what is not. He has to be judged in the circumstances in which the alleged offence was committed. The great advantage of that situation was that the jury of men and women with their own experiences could set the standard and decide what was reasonable or what was not. Certainly, based on my experience, they always exercised that task in a way that was sympathetic to the defendant whose home was interfered with.
The problem and disadvantage caused by introducing an amendment of this sort is that you will always try to put into language the appropriate circumstances where you think a particular result is desired. However, there will be circumstances that are very similar to those circumstances, but where the language used does not apply. You cannot anticipate all the circumstances. One inevitable difficulty with this sort of amendment is that there will be amendment after amendment to the law, making it more and more complex and difficult to apply. Yet, as the quotation from the present Lord Chief Justice makes clear, a statement of the sort he indicates will achieve justice in the particular case.
I can understand why it is thought to be a good thing to do everything possible to defend victims of a particularly nasty crime from unintended consequences. However it is not desirable when the law itself is satisfactory and changing the long-standing law that upholds the spirit of the common law is sought by reducing it to the kind of language we have here.
Baroness Kennedy of The Shaws
My Lords, I, too, oppose this amendment and echo everything said by the noble and learned Lord, Lord Woolf. The whole nature of self-defence in the common law is very clear. Day in, day out, juries up and down the country judge using that set of criteria; which is that when you are fearful for your own safety or that of your family, when you feel a threat and act in response to the fear of a threat, no one expects you to measure the nature of your response to a nicety. No one for a minute expects you to be measured in the cold light of day and not take account of the heat of the moment that faces you when defending yourself. That is a measure in the courts on self-defence anyway, but it becomes even more heightened when dealing with the terror that we all know—and probably most of us have experienced—when we find that we have been burgled.
So this is about reaching for changes in the law for rather unsatisfactory purposes. A Dutch auction is now going on between the political parties about who can be tougher on law and order and this is about seeking to appeal to a fear in the public that is already met by law. That really is the poorest kind of legislative endeavour and is not worthy of the Benches on the other side.
Lord Lloyd of Berwick
My Lords, I entirely agree with the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws. I remember well when the Criminal Justice and Immigration Act 2008 was going through this House that I was much concerned by Section 76. I have always thought that the piecemeal amendment of the common law by legislation was a mistake unless such amendment was preceded by a report from, in the old days, the Criminal Law Revision Committee or, nowadays, the Law Commission. I suggest that there are two grave disadvantages in the sort of piecemeal amendment we are now asked to perform. First, it deprives the development in the common law of the flexibility that the common law provides as circumstances change. Once you put it in statute it is in statute, and if it is to be changed at all it has to be changed by statute. Secondly, it may often be initiated as the result of a particular campaign—this may be an example of that—without regard to the wider context.
I did not in fact oppose Section 76 when it went through the House because it at least did not in any way seek to change the law on self-defence. That is made amply clear by Section 9 itself. Section 76 was in some ways an odd provision because it refers both in subsection (1) to the test being one of reasonableness and in subsection (6) to the test being one of disproportion—although those two things might be thought to be opposite sides of exactly the same coin. That will not be so from now on because of the addition of the word “grossly” before the word “disproportionate”. For that reason Section 9, which made it clear that the common law was not going to be changed, has now itself been amended to show that, in this respect, the common law is being changed. We are thus now doing exactly what I feared would be the result if we stratified the law as we did in 2008.
What is being done is defended on the basis that it is very difficult for the householder, in the agony of the moment, to make a nice judgment as to what is reasonable or is not. That has always been the law, as my noble and learned friend Lord Woolf has made clear. Speaking from my own experience, I have always stressed that very point. In that respect, this will not change the law but it will, in fact, change the law in the way that I have described. Just as judges have got used to directing juries in accordance with Section 76, they will now have to change tack, which they should not be required to do.
Lord Pannick
My Lords, the Minister said that householders should not be subjected to criminal liability because of the use of force which may appear disproportionate in the cold light of day, and that the amendment is designed to redress the balance. It is very important to identify precisely what the balance is at the moment and, as the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws, have said, the law is very clear on this subject. The official specimen directions to a jury—what judges up and down the land actually tell jurors on this subject—are contained in the Crown Court Bench book which says:
“When considering whether the defendant’s conduct was reasonable do bear in mind that the person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary; and in this regard, the more serious the attack (or threatened attack) upon him, the more difficult his situation will be. If, in your judgment, the defendant was or may have been in a situation in which he found it necessary to defend himself and he did no more than what he honestly and instinctively thought was necessary to defend himself, that would be very strong evidence that the amount of force used by him was reasonable”.
This provides all the protection that the householder needs or, indeed, deserves. The Minister did not refer to any cases of unjust convictions, or even unjust prosecutions that should not have been brought. The highest that the Minister put it in his opening remarks is that such cases “might conceivably” occur in the future. This is surely the weakest basis for proposing law reform that your Lordships will have heard for some time. Furthermore, I agree with the noble Baroness, Lady Kennedy of The Shaws, that these amendments are inconsistent with our obligations under Article 2 of the European Convention on Human Rights to protect the right to life. It is one thing to allow the householder to use proportionate force and to assess that on the basis of what they honestly and reasonably understand the facts to be at the time they act in circumstances of shock and distress. It surely is a very different matter for Parliament to authorise the use of disproportionate force.
With great respect, I cannot understand why the Opposition Front Bench is not opposing this amendment in the Division Lobby today, despite the noble Lord, Lord Beecham, eloquently explaining that the amendment would cause confusion and nothing positive. It is all very well to treat this as a Second Reading debate but it is the only opportunity that this House will have to oppose the amendment. I hope that the Opposition will reconsider their position. I am sure that many noble Lords would join them in the Lobby if a Division were called.
This amendment is unnecessary, unprincipled and inconsistent with our international obligations. I hope that the Government will think again.
Lord Morris of Aberavon
My Lords, I am sorry that I missed the beginning of the debate: I was engaged on other business. I support everything that has been said against this amendment. It is unnecessary and confusing, and will be inflexible. My experience is much more limited: I was a criminal practitioner who had to sum up in these kinds of cases on dozens of occasions.
On those occasions, I always would quote—I am grateful to the noble Lord, Lord Pannick, for giving us an account of the current sentencing preferred remarks by the Sentencing Council—a namesake, who is no relation although I knew him. Lord Morris of Borth-y-Gest used to say that in the heat of a moment, one cannot judge to a nicety the appropriate amount of force that is reasonable. That phrase used to be quoted in the sentencing remarks and was referred to by my noble friend Lady Kennedy.
In summing up, will the Minister enlighten us as to the form of words that would be used by a judge to sum up a situation where he is saying that a disproportionate amount of force can be used? I should like to know what those words will be. That would clarify the situation beyond peradventure. I fear that the Lord Chancellor is making up the law on the hoof and will rue the day if this becomes part of our law.
Baroness Butler-Sloss
My Lords, I, too, have been burgled and I have absolutely no sympathy with burglars, but this amendment goes too far. I am very concerned about proposed new subsection (5A), under subsection (2) of Amendment 113C, as regards using the words “grossly disproportionate”. As the noble and learned Lord, Lord Morris of Aberavon, has just asked, how on earth would one advise a jury—I am glad to say that I was not a criminal lawyer but I did a little crime—that you can be disproportionate but not “grossly disproportionate”?
I share the view of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, that it is contrary to the European Convention on Human Rights. I believe it is a matter that would end up in Strasbourg if we were not extremely careful. The Government—I can see for the best of intentions—are just going too far.
My recollection about the Martin case, which I read only in the press, is that he was shot in the back, which would be “grossly disproportionate”. Obviously, one could see why he did not get the existing protection that the Lord Chief Justice has given and that is in the standard advice to juries, as the noble Lord, Lord Pannick, read out. We do not need to go further. To go further will cause real trouble.
Lord Goodhart
My Lords, I regret that I cannot support this new clause. I agree entirely with what the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, and a number of other practising lawyers have said. I regard this matter as very unsatisfactory. I have not practised as a barrister in recent years but I practised in the past and this proposal is unsatisfactory.
Lord Martin of Springburn
My Lords, I speak as a layman who has represented communities in which the whole family cannot go out for a night’s entertainment because someone has to stay in for fear of being burgled. Like many noble Lords, I know what it is like to be burgled. You feel terrible when your home has been broken into. What worries me about the provision in this amendment is that in some historical cases firearms have been used. If this amendment is passed, many people who do not want their house to be broken into again will take precautions. In the countryside, people have firearms certificates for vermin and for recreational shooting, and I know that there are some firearms certificates in the city I represented because I had to sign certificates to say that the holder was a good, decent person. With this amendment, some people will want the same protection as someone living in the countryside and will apply for a firearms certificate just in case. That is a worry. There is a big difference between someone living on a small farm having a firearm and someone living in a tenement where it is much more dangerous.
I know from my experience in another place that Ministers, some of them the holders of the highest offices in the land, indulge in sound bites. They say to the press, “People are entitled to protect their homes”. Of course they are entitled to protect their homes, but we cannot have a situation where we give a licence to someone who will decide that he is going to take a shot at a burglar and will say that it was proportionate or that he did not think about it at the time.
Part of this amendment relates to Armed Forces accommodation—barrack rooms. We are talking not about shotguns but about far more lethal firearms. A soldier could say, “I was defending myself, and that’s why I shot this intruder”. I speak as a layman. I have no experience of standing in a court and putting a case or of listening to a case, as some noble Lords have, but I think this amendment is bad news.
Lord McNally
My Lords, this has been a very thoughtful debate, and people of great experience have put their views forward. I shall try again to explain where the Lord Chancellor is coming from and to reassure noble Lords on some of the points that have been made.
In bringing forward this amendment, the Lord Chancellor wants to clarify the situation and reassure the general public. Although the last contribution from the noble Lord, Lord Martin, was not in support of my proposal, it made the point that we are trying to deal with ordinary people dealing with situations in their lives. I understand lawyers making their points, but it is important that we see this from the public’s point of view. Although some recent cases have not led to prosecution and conviction, as I said, there may be cases in future which will benefit from the additional protection and clarification we are providing. Let me be very clear again, following on from what the noble Lord, Lord Martin, said, that this is not a vigilantes’ charter. In this country, there are still extremely strict rules about the possession and storage of guns which would still apply.
This is an attempt to recognise that people confronted by burglars, and acting in fear for their safety in the heat of the moment, cannot be expected to weigh up exactly how much force might be required. In these extreme circumstances, we think they should have greater legal protection. It is certainly not a licence to kill, whatever the circumstances. People will still be prosecuted if the use of force was unreasonable in the circumstances. The use of grossly disproportionate force will never be reasonable.
It will be for the courts to determine in each case what is disproportionate or grossly disproportionate. We want to make clear though that householders, who cannot always be expected to be thinking clearly if they are confronted by an intruder, will not be treated as criminals if they use a level of force which in the circumstances as they believed them to be is reasonable but turns out to have been disproportionate. We are clear that it is not open season for vicious attacks on anyone, even an intruder.
Let us also be clear, if somebody has been killed or seriously injured, an arrest may be necessary for the police to investigate thoroughly. A revised code of arrest for the police—PACE Code G—came into force on 12 November 2012 with new guidance on the circumstances in which an arrest may be necessary. The guidance also encourages the police to consider whether voluntary attendance at an interview might be a practicable alternative to a formal arrest. The changes we are making to the law will complement the improvements made to PACE Code G.
We are not changing the fundamental premise that a person can only use force that was reasonable in the circumstances as they believed them to be. The law on the use of force in other circumstances, for example, to defend oneself on the street, to prevent crime or to protect property will remain unchanged. We are trying to rebalance the law so that householders will not be thought of as criminals but, as I said at the beginning, quite properly as victims.
I am assured that we believe that the amendment is compatible with the ECHR and that we have recently published a memorandum in support of that view which I will put in the Library of the House.
Listening very carefully, I again pray in aid although I am not saying he is in support of this particular amendment, the Lord Chief Justice, who caught the mood behind the amendment at his press conference in September. He was reported as saying that,
“I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally”,
where,
“it looks as though the householder is the criminal”.
He then pointed out the circumstance of a householder facing a burglar.
“You are probably very cross and you are probably very frightened—a mixture of both—and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller’s scale”.
The realisation that in such terrifying circumstances you cannot measure it in a jeweller’s scale led the Lord Chancellor to conclude that it would be better to clarify the law in a way which he believes will be more reassuring to the householder and give better guidance to the court.
Lord Pannick
Before the Minister sits down, have the Government consulted the Lord Chief Justice and the judiciary on this matter and, if so, what has been their response to the amendment?
Lord McNally
The amendment is a government amendment, and the Government stand by the amendment.
Lord Avebury
“Immigration appeals: asylum and humanitarian protection
(1) The Nationality, Immigration and Asylum Act 2002 is amended as follows.
(2) In section 83(1)(b) omit the words “Kingdom” to the end.”
Lord Avebury
My Lords, the new clause proposed by the first amendment in this group would remove the restriction whereby an appeal against the refusal of asylum can be brought only where the person has been granted leave to enter or remain for more than 12 months. Noble Lords will be aware that unaccompanied children who are refused asylum are granted humanitarian protection or discretionary leave for periods of three years or until they reach the age of 17, whichever is the shorter, on the basis that they cannot be sent back to their country of origin. Bearing in mind that the UKBA takes months and sometimes years to decide whether to grant humanitarian protection in lieu of asylum, the child might arrive at the age of 15 or even earlier, might be refused asylum at the age of 16 and might still have to apply for discretionary leave to remain for a period that would make the total more than 12 months before appealing against the refusal.
I take it that there are very few refusals of the extension of discretionary leave, as almost all unaccompanied asylum-seeking children will have had no contact with family in their country of origin and therefore will still be ineligible for return when they reach the age of 17. The effect of the provision in the 2002 Act is to delay the permanent settlement of these children in the UK, making it harder for them to access the whole range of public services, including further and higher education, so that their economic and social potential is less than it would be if and ultimately when they become permanent residents of this country.
My noble kinsman said on 4 July 2012, in col. 710, that it was an “unfortunate consequence” of the otherwise very sensible 12-month restriction. He gave an assurance that the policy as it affects children would be reviewed. I was looking forward to hearing the outcome of that review at this stage of the Bill. It seemed to me that the Bill could only confirm the unfortunate consequences, as my noble kinsman called them, and that the Government would explain how they would eliminate them. Instead, my noble friend Lord Taylor told me in a letter of 20 November:
“We have considered this matter very carefully and have concluded that no change in current practice is appropriate”.
He stated, quite inaccurately, as I see it, that the,
“amendment would undermine the intention of the existing appeals framework, namely, to prevent multiple appeals that result in significant cost to the taxpayer”.
Those who are recognised as refugees will not need any second appeal, but the children and trafficked persons in question will get no appeal at all until they face removal—something that, had their case been decided correctly at the outset, they would never have faced. My noble friend says that the young persons affected by Clause 83(1),
“are on the cusp of adulthood, and … the detrimental impact of any delay in an appeal right arising is less severe than it would be for children of a younger age”.
I think the opposite is true, because younger children tend to accept the situations they face as a result of adult decisions, but as they approach maturity they can recognise deliberate unfairness inflicted on them by authority. I would like to know whether my noble friend sought the advice of experts such as the Children’s Society before he expressed that opinion or whether it was ex cathedra.
Does his review cover trafficked persons, who are granted leave for one year following a determination through the national referral mechanism set up by the Government to identify and support victims of trafficking in the UK? That process was established in pursuance of the Government’s obligation to identify victims under the Council of Europe Convention on Action against Human Trafficking. Article 14 of the convention provides that a victim of trafficking shall be granted a residence permit, which will be without prejudice to the right to seek and enjoy asylum. That seems to imply that the 12-month residence permit granted to trafficked persons would not debar them from submitting an asylum claim. I look forward to hearing from the Minister how this can be squared with Section 83(1).
I turn to the second of the new clauses. The purpose is to remove the statutory presumption that a country other than a person’s country of nationality is a safe country to which a person seeking asylum can be removed simply because the Secretary of State asserts that it is a safe country. A safe country is one where the person will not be persecuted and from which he or she will not be refouled in contravention of the refugee convention or the European Convention on Human Rights.
Section 94 of the Nationality, Immigration and Asylum Act 2002 establishes a scheme whereby persons seeking asylum may be precluded from a right of appeal against the refusal of asylum unless and until they have left the UK, including where this may mean returning to their home country or to a third country that the Secretary of State asserts to be safe. Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 limits what the asylum seeker can argue on a judicial review about the safety of the third country.
Section 94(8) creates a statutory presumption that, when the Secretary of State asserts that a country other than the person’s home country is safe, it is presumed that in that country the asylum seeker will not face persecution for a refugee convention reason and will not face being returned to a country in which he or she does face persecution for a refugee convention reason. The statutory presumption seeks to oust the jurisdiction of a court to consider the correctness of the Secretary of State’s opinion as to the safety of such a country.
The provisions of Schedule 3, which the new clause proposes to delete, require a court dealing with a judicial review relating to a removal to make presumptions of safety. For example, paragraph 3(2) states:
“A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place … where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion”.
In the case of NS, the claimant asylum-seeker had sought judicial review of his third country return to Greece. Whereas the Administrative Court in England and Wales had been concerned as to the conditions in Greece, it considered itself bound by previous authority to uphold the UK Border Agency decision to return NS to Greece. The Court of Appeal referred the matter to the Court of Justice of the European Union. That Court concluded, in the context of European Union arrangements for safe third country returns within the European Union, under what are often referred to as the Dublin Regulations, that,
“to require a conclusive presumption of compliance with fundamental rights … could be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary”.
The presumptions in Section 94(8) and the paragraphs of Schedule 3 seek to be such provisions, and accordingly ought to be removed.
Greece is not the only safe country where these presumptions may be unfounded. Section 94 allows the Secretary of State to list not only countries that are safe, but countries that are safe for a given description of persons. Thus a number of African countries are designated as safe for men, so that women threatened with return to those countries still have an in-country right of appeal. However, lesbian, gay, bisexual and transsexual people, who suffer relentless cultural, social and even legal pressures and persecution in more or less the same list plus Jamaica, have no such right.
In the case of HJ (Iran) and HT (Cameroon), which was dealt with in the Supreme Court in 2010, the noble and learned Lord, Lord Hope, spoke about the,
“rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”.
It was lucky for HT that he did not come from one of the countries designated as safe such as Malawi where, as the noble and learned Lord, Lord Hope, pointed out, two gay men who celebrated their engagement had recently been sentenced to 14 years in prison. If those men had sought asylum in the UK, their claim would have been treated as unfounded and they would have had no right of appeal. Curiously enough, two lesbians in the same circumstances would have had a right of appeal, since Malawi is treated as a safe country for men only in Section 94.
If the Government are not prepared to accept this amendment, the least they could do is to make the list in Section 94(4) correspond with the reality of persecution on account of sexual orientation as well as gender, which can be done by order. My noble kinsman replying to a similar amendment at Committee, claimed that an appeal after removal was a satisfactory remedy for those removed to a “safe country”. Could the Minister tell your Lordships how many people who were removed after claiming asylum from a supposedly safe country on the basis of their sexual orientation managed to appeal from abroad, and in how many of those cases they were successful? I know that the Government are very well aware of the widespread persecution of LGBT people, so I assume that they will have kept records of these cases, although I do not expect the Minister to be able to produce them on the spot.
I turn to the third new clause. The purpose is to ensure that an appeal is not treated as abandoned when leave to remain is granted to the appellant. The situation at the moment is that under the provisions sought to be left out of Section 104 of the 2002 Act, this happens automatically, and the result is that the tribunal is prevented from reaching judgments on points of principle that are dealt with in the case. It can happen that a series of cases, all turning on the same principle, are aborted by the Secretary of State in this way, contrary to the interests of justice.
In the case of Osman Omar, the judgment handed down on 29 November 2012 by Mr Justice Beatson addressed this issue. He resisted attempts by the Secretary of State to argue that the claim was redundant in that she had already granted the claimant further leave to remain. He ruled, in effect, that the Secretary of State cannot keep knocking cases out by settling them on the facts and refusing to litigate on the point of principle. As Mr Justice Beatson said:
“The substantive issue raised by the claimant is an issue which arises regularly. It arose in Francis. It will arise in the case of Ahmed ... which, as I have stated, is listed for hearing at the end of January 2013”.
Therefore, the challenge in these particular cases is to the vires of the regulations, which provide for a fee to be payable for an extension of discretionary leave, but with no discretion for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. I hope the Minister will agree that it is important for this question to be determined, and that in cases of this kind, it is common sense to leave the matter to the tribunal. I beg to move.
Lord Beecham
My Lords, I have a good deal of sympathy with the noble Lord’s first amendment, but am not perhaps quite as persuaded by the subsequent amendments. However, in any event I pay tribute to the noble Lord, Lord Avebury, for his consistent concern with the problems of a particularly vulnerable group in our society and his very powerful advocacy on their behalf. He has obviously seized the opportunity to bring that concern into this Bill. I object less to that spatchcocking than I did to the previous amendment moved by the Minister in relation to burglary, but perhaps it is not the best forum in which to take these matters forward. I hope that the Minister can go a little further than he appears to have done in correspondence with the noble Lord and at least indicate that this whole area should be reviewed. It is some time since we have had a proper debate around the particularly delicate issues to which the noble Lord referred. While it is probably the case that this is not a matter to be voted on today, it should not be neglected indefinitely and ought to be considered.
Perhaps the Minister could indicate that discussions, not in respect of Third Reading but more generally, could take place around these and allied issues in connection with asylum and immigration matters where they impinge on the presence or otherwise in our country of people who have fled persecution and danger elsewhere, in a context that is outside the legislative framework for the time being. That might be a way forward in which a broad consensus could be reached across the House rather than dealing with it in terms of the amendments that are before us today. Again, I pay tribute to the noble Lord for raising these matters. I hope that can be seen as a first step and not the last step in a process of looking at the issue.
Baroness Hamwee
My Lords, I support my noble friend and add one further thought. In terms of public awareness, I have heard it said that these issues are now at about the same stage that domestic violence was about 20 years ago. I think that there would be a good deal more public understanding and sympathy for the sorts of changes that my noble friend has advocated even than there might have been four or five years ago. I think that the public mood is moving somewhat on this. It would be nice for the Government to be ahead of the public mood.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I cannot promise my noble friend that the Government can be ahead on these issues but I am grateful for the opportunity to debate his amendments. I assure the noble Lord, Lord Beecham, that the Government keep the workings of the asylum process under review. Indeed, it would be wrong not to do so.
Amendment 113D would create a right of appeal whenever someone is refused asylum and granted any form of leave. As a result there would be more appeals against a refusal of asylum for a group of cases where no immediate right currently exists, and multiple appeals from individuals.
As my noble friend Lord Henley acknowledged in Committee, it is an unfortunate consequence of the otherwise very sensible 12-month restriction that some unaccompanied asylum-seeking children will experience delay in bringing an asylum appeal. My noble friend agreed to review the policy in respect of children to ensure that there were no unintendezd consequences. We have completed that review and concluded that this policy, seen in the context of the statutory appeals framework and current economic circumstances, operates as intended. As my noble friend has said, I have written to him to confirm this.
This amendment is to Section 83 of the Nationality, Immigration and Asylum Act 2002, which provides that an individual may appeal against an asylum refusal when leave is granted for a period longer than 12 months. Amendment 113D would remove the 12-month restriction and create a right of appeal against the refusal of asylum regardless of the period of leave granted. It is not unusual for short periods of leave to be extended more than once. Recent case law means that this amendment could create a right of appeal against the earlier refusal of asylum every time further leave was granted. Therefore, this amendment would have serious and undesirable consequences for the existing appeals framework as it could result in multiple fruitless appeals being used to prolong someone’s time in the UK. In the current economic circumstances, it is vital that resources are used where they are most needed. While I recognise that the intention of this amendment is to reduce delay for children and trafficked persons, the consequences for the appeals framework are not justified for the following reasons.
First, the amendment is too broad. It would extend the right of appeal under Section 83 of the 2002 Act to anyone granted leave after a refusal of asylum, not just children and trafficked persons. This would result in additional costs and resources to administer each appeal. Secondly, only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend. It would affect only those who are older than 16 and a half when refused asylum but granted some other form of leave. As we have said, these children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. This delay is not unreasonable.
Thirdly, while it is correct that trafficked persons are similarly affected, for similar reasons to those we have given in relation to children we believe that the current policy may be equitable in all the circumstances. Section 83 of the 2002 Act affects only those trafficked persons who claim and are refused asylum. It is important to remember that in all cases before a child or any trafficked person is removed from the UK, they will be entitled to a right of appeal. The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment proposed would undermine this key principle of the Secretary of State’s asylum appeals framework. For the reasons set out above, we are not persuaded that the current policy for appeal rights under Section 83 of the 2002 Act, either for children or more generally, has an impact of the magnitude necessary to justify incurring additional expense in relation to appeals.
Amendment 113E concerns the Secretary of State’s powers to certify, under Section 94 of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach their human rights where the presumption is that the country to which the person is to be removed is safe. The effect of the certificate is that an appeal can be brought only after the person has been removed. This provision prevents appeals being used to delay removal in hopeless cases. Persons will be removed to a third country only if that country will not remove the person to another country other than in accordance with the refugee convention. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached.
Amendment 113E is tabled on the basis that Section 94(8) seeks to oust the jurisdiction of a court to consider the safety of the country of removal. It is, however, unnecessary. The courts are already able to consider whether the person’s human rights might be breached where judicial review challenges the issuing of the certificate. Once removed to the third country, an appeal may be brought and refugee convention issues can be considered. My noble friend asked for some detail here, and I will have to accept his very kind offer to allow me to write to him to give him a response to the data he was seeking.
Amendment 113E also seeks to remove those provisions in Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 that reduce the circumstances in which removal to a safe third country can be frustrated on the grounds of unmeritorious claims about treatment in, or removal from, those countries. The amendment would have a considerable practical impact on removals made to other European countries under the Dublin regulation. That regulation determines which state is responsible for examining an asylum claim. It plays a key role in tackling abuse of asylum systems through the phenomenon of “asylum shopping”. Indeed, the value of the Dublin regulation to the UK is clear. Since 2004, the UK has been able to remove more than 10,000 individuals under the Dublin regulation.
It is argued that the amendments are necessary to reflect the terms of the ruling of the Court of Justice of the European Union in the case of NS v Secretary of State for the Home Department, dated 21 December 2011. My noble friend referred to this case. The Government respectfully disagree. The ruling in NS gives useful guidance on the correct approach to fundamental rights as a matter of EU law. However, as a matter of practice, it does not significantly change the approach to domestic legislation. The concept of a rebuttable presumption in legislation when considering the impact of the Human Rights Act is not new. It was firmly established by existing case law from the European Court of Human Rights in KRS v UK in 2008 and from the House of Lords in Nasseri v Secretary of State for the Home Department in 2009. What the Luxembourg court has done in NS is confirm that a similar approach should be taken when it is alleged that there is evidence of the Charter of Fundamental Rights being breached.
I turn, finally, to Amendment 113F. The effect of this amendment would be to allow an appeal to proceed where the appellant has been granted leave by the Secretary of State. The purpose of many appeals is to overturn a decision to refuse to grant leave. Consequently, it is the Government’s position that in the majority of cases an appeal should not proceed where leave has been granted. Currently, Sections 104(4A) to 104(4C) of the Nationality, Immigration and Asylum Act 2002 provide that an appeal cannot proceed where the appellant has been granted leave. The exceptions are where the appeal is brought on the ground of race discrimination or where the appeal is against a refusal of asylum and the leave which has been granted is in excess of 12 months. This is consistent with Section 83 of the Nationality, Immigration and Asylum Act 2002, which was the subject of Amendment 113D. Where the appeal does not fall into these two groups, we do not believe it is necessary or appropriate for it to proceed where leave has been granted. The appeal is unnecessary because leave has already been granted. There is no detriment caused by the absence of a right of appeal which will be cured by this amendment. However, making this amendment would have a detrimental impact as additional rights of appeal would arise, each of which represents an additional cost to the Government and the taxpayer. The increased number of potential appeals will place an additional burden on the tribunal and court systems, which are already dealing with significant numbers of immigration appeals.
We do not believe that preserving an appeal right where leave has been granted is necessarily appropriate. Frequently, the Secretary of State makes a grant of leave while an appeal is pending for pragmatic reasons. This avoids unnecessary litigation at a cost to both parties. Where leave has been granted, an appeal can proceed only on an academic, rather than an individual, basis. The tribunal is primarily a fact-finding tribunal and therefore it is not appropriate for a case to proceed before it on an academic basis only. In light of these points, and in the knowledge that I will continue to work with my noble friend and respond to his questions on this issue, I would ask him to withdraw the amendment.
Lord Avebury
My Lords, I am most grateful to my noble friend the Minister for his thorough reply to these three amendments, although—as he would expect—I cannot say that I am entirely satisfied with his response. In the case of Amendment 113D, he did not go into the consequences of giving limited leave to remain to unaccompanied children and trafficked persons—a matter which I tried to outline in moving this amendment. There is room for further examination, and if he is prepared to let me have sight of the review that was undertaken, that would be the most helpful basis on which we might proceed.
As he will have realised, these amendments were all framed by the Immigration Law Practitioners’ Association and it, too, would like to be consulted in any review that will be undertaken in the future on the implications of the present situation for these unaccompanied children and trafficked persons granted limited leave to remain. My noble friend said that the amendment was too broad; we would be perfectly happy if, as a result of further discussions bringing in the legal advice of ILPA, we could agree on a more limited version of Amendment 113D.
With regard to Amendment 113E, removing someone to a supposedly safe third country does not eliminate the right of appeal, but if you have to exercise the appeal from an overseas country with all the disadvantages that that entails in the way of consulting lawyers, obtaining written statements and so on, the right is really not worth very much. The cases we considered mean that the designation of safe third countries is not a satisfactory way of proceeding, particularly when one considers the position of LGBT asylum seekers. I mentioned them in my remarks, but the Minister did not touch on them in his reply. I realise that I was asking for detailed information about what has happened to LGBT asylum seekers who were returned to supposedly safe countries. Maybe we can review the situation once we have that information in front of us.
On Amendment 113F, I mentioned the remarks of Mr Justice Beatson and thought that maybe my noble friend would not have had time to consider that judgment. Perhaps we can pursue the matter in more detail later. He did not respond to the point that, by granting leave to remain in a series of cases that touched on the same matter of principle, the Secretary of State was avoiding any resolution of the matter of principle, which would be helpful in cutting short proceedings of the tribunals in later cases. Therefore, I do not accept what my noble friend said about the saving of time in the courts; I think the reverse is probably true, but again, perhaps we can leave this for further discussion with the benefit of advice from ILPA at a later date. In the mean time, I beg leave to withdraw the amendment.
The Deputy Speaker (Viscount Ullswater)
Before I call the next amendment, I wish to announce that in the Division on Amendment 113C, there voted Not Content 55, not 54 as announced.
Schedule 16 : Super-affirmative procedure
Amendment 113G
Lord Ramsbotham
Lord Ramsbotham
My Lords, I was concerned that timing might be against us getting to this point this evening, because I have an unavoidable engagement to which I must go. Having looked at what was said on the amendments in this group, both at the recommitment and in Committee, I do not feel that there is much more that I need to add. My concern about what is included in the section that I am seeking to have removed is that it is based on perception and not on fact. For example, I learn today that 50% of all cases involving violence are now dealt with outside the courts, which suggests that there is some confusion over where violence should be dealt with. I am very concerned that the word “punishment” should be added like this, because from talking to magistrates and others I know that they are already quite clear what their duty is in terms of the sentences that they have to impose. What we are talking about here is not so much the need to add this initiative to sentencing but looking at and seeing what is actually done with and for those people who receive the sentence.
As I have said before, we are in the dark here because we simply do not know what the Secretary of State has in mind. We have not yet seen the terms of the government response to the probation consultation. We understand that there are going to be commissioners all over the country commissioning community sentences, although we do not know whether they are going to come from the probation service, the voluntary sector, the private sector or whatever. We are in the dark and, frankly, I think it is a great pity that something like this should be left in such an imprecise state. That is why I wish to see the thing removed. There is so much work to be done in this area. Anything that needs to be done should be brought back after further work on the whole area, including study of the probation consultation, has taken place. I beg to move.
Lord Rosser
My Lords, we have an amendment in this group. It is interesting that the Government’s response to the consultation on effective community sentences states:
“We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element”.
The Government’s response refers to restrictions of liberty such as curfews, exclusion or community payback. The use of the words “such as” implies that a court could impose other requirements that would be regarded as restrictions of liberty. Can the Minister confirm if that is the case? What might the other restrictions of liberty be that would be regarded as punitive? Will he also confirm that if a court imposed as a punitive element something other than a curfew, exclusion, community payback or a fine, that would not be regarded as acting outside the terms of this Bill?
The Government’s response to the consultation on effective community sentencing also refers to a punitive element being a restriction of liberty that represents, to the public, a recognisable sanction. Who is to determine what represents to the public a recognisable sanction? Will it be for the court to decide? If it decides that a punitive element is something other than a curfew, exclusion, community payback or fine, will the court, whether the original court or an appeal court, be regarded as having acted outside the terms of the Bill?
Even the Government’s own response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive element and that many suggested that offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, those with personality disorders and young adults with low maturity should also be excluded. Does the Minister also hold that view, and would the number of such offenders exceed the 5% that it has been widely suggested would be the percentage the courts might feel able to regard as covered by the definition of “exceptional circumstances” laid down in the Bill and thus exempt from the Government’s definition of a punitive element?
One rather assumes that the Government’s approach is conditioned by the kind of recent statement made by the Secretary of State for Justice, that he shares public concern that offenders given community sentences often feel they are getting away with it; that they have been slapped on the wrist rather than properly punished. However, if that is the case, who is it giving that impression to the public other than politicians who make statements like that rather than spelling out just what a community sentence is? Two-thirds already include a punitive element, on the Government’s apparent definition.
Published research on short custodial sentences found that many prisoners preferred short sentences over community sentences because they found the latter more challenging. Does the Minister agree or disagree with those findings by the Howard League? Why does he take the view that a rehabilitation element in a community order cannot be at least as challenging to an offender, if not more challenging, than the Government’s version of what constitutes a punitive element?
For someone who has an addiction, learning difficulties or low maturity, or has led or been allowed to lead a thoroughly dysfunctional and disorganised life, having to face up to the realities of their lifestyle or situation through a challenging programme that they have to attend at specific laid-down times as instructed and co-operate with, or else risk being taken back to court and sentenced in another way, is at least as difficult as doing community payback or paying a fine related to their means. Yet that apparently is not the view of the Minister. Perhaps he could explain why that is not his view. I hope that he will be able to get a bit further than telling us it is because that is not the view of the tabloid press.
If the current position were changed and virtually all community sentences included a punitive element along the lines that the Government appear to be trying to enforce, does the Minister accept that that could be at the expense of rehabilitation elements in a community order? If a punitive element had to be included in an order that currently incorporates what the Government regard as only a non-punitive element, will the Government be providing additional resources to the probation services to cover the cost of this additional requirement, or will probation service budgets be left as they are so that, in order to remain within budget, those services may have to drop the rehabilitation element from the order to enable the cost of the additional punitive element to be paid for within the laid-down budget? What reassurances can the Minister give that this will not happen? The loss of the rehabilitation element in the order where deemed necessary will not contribute anything towards reducing reoffending.
The fact that the Minister does not appear to regard community order requirements involving challenging programmes for rehabilitation as at least on a par, in terms of restrictions on liberty and difficulty for offenders, with unpaid work in the community, a curfew or a fine—which are about the only things the Minister regards as in any way imposing a restriction on liberty—is a step backwards and simply seems to confirm, not challenge, the view that community orders are “soft”. Where unpaid work, a curfew or a fine is appropriate, that is what the offender should be given, but not where it would be inappropriate. The reality is that the Minister has decided that in some 95% of cases involving a community order as a sentence, unpaid work, a curfew or a fine is appropriate. It is usual to hear the facts of a case before coming to a conclusion on what is the appropriate sentence, but that is not what the Government are doing as they seek to specify what must be included in a community order in 95% of cases.
The Government appear to have lost confidence in the courts at a time when crime is falling, without explaining why, other than their own unwillingness to challenge the perception they believe the public hold that current community orders are soft. The reality is that the most important thing the public want to see delivered by a sentence is a reduction in reoffending, and an end to reoffending by the offender. I hope that even at this late stage the Minister will be prepared to change his stance, or at least review it, and support my amendment, which includes a range of existing programmes and orders as being within the Government’s punishment requirement in the Bill.
Lord Woolf
My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.
I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.
To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:
“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.
Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.
My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.
Baroness Hamwee
My Lords, I have Amendments 113GZB and 113GC in this group, to which my noble friend Lady Linklater has added her name. These also deal with the term “exceptional” and with the application of the section in the Criminal Justice Act 2003 that provides for the court to have regard to the purposes of sentencing, which are listed as:
“the punishment of offenders … the reduction of crime (including its reduction by deterrence) … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation”.
I do not seek these amendments to exclude punishment from the matters to which the court must have regard and I acknowledge that society must deal with offenders in such a way as to win and retain the confidence both of victims and the general public. However, I cannot extrapolate from the research referred to in the impact assessment that where there is a punitive element, there is less reoffending.
Reading through the impact assessment yesterday, it struck me that the sentences in question, which the impact assessment prays in aid, will have been tailored to the offender by the court. In other words, they will be much more bespoke than it seems we are being asked to agree. Certainly, there is no comparison with a control group. Almost by definition, there cannot be a control group in these circumstances. We are told in the impact assessment that the rationale for intervention is to give tools to sentencers. As we have heard—not only tonight—we already have an extensive toolbox and we are adding to it with the welcome provisions on restorative justice. However, the theory of having certain tools available and their availability in practice may not always be quite the same. Public confidence comes from reducing reoffending and crime overall and we have heard what victims want. At the last stage of the Bill, I referred to research by the Restorative Justice Council and Victim Support, which amounts to victims wanting to be sure that “he does not do it again”.
The impact assessment also acknowledges that because community orders must be,
“proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones”.
This worries me greatly. The Government tell us that some requirements may be labelled punitive, but in fact would be rehabilitative or become rehabilitative. The Minister used the example of requiring someone to get up every morning to go to an educational course. By the end of it, that person might have found it was a good thing, so it will have moved from punishment to rehabilitation. As I have said before—and I do not resile from this—I find both the possible substitution and the labelling worrying: for instance, labelling education or mental health treatment as punitive. The noble Lord, Lord Rosser, has spoken to his amendment, listing the types of community order which may amount to punishment. I depart from others on this because I do not think that saying the punishments “may include” takes us a lot further forward. If it is to send a message to the sentencers, then the new subsection (2A) sends a stronger message, in effect saying that a fine is not a punishment. I realise that we did not focus much on this at the last stage.
Without spending long on this, I very much support Amendment 113GB from the noble and learned Lord, Lord Woolf. This expresses what I for one have not been able to articulate previously. At the last stage and on other occasions we have talked a lot about the characteristics of offenders and their circumstances. We know about mental health problems and substance abuse, which so often underlies them. Other noble Lords will have seen a new report from the Criminal Justice Alliance, drawing attention to the mental health treatment requirement and its underuse. That is a pity, because the very prevalence of mental health problems means such an offender is not exceptional. In Committee, the Minister stated that,
“the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders”.—[Official Report, 13/11/12; col. 1428.]
I do not entirely follow how the “tightly defined threshold”—as he described it—ensures that the requirements do not have “a disproportionate impact”. My logic is too confused even for me, but I did not quite follow the argument.
The Minister also stated:
“Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective”.—[Official Report, 13/11/12; col. 1429.]
Surely it must affect the hierarchy of sentencing purposes and principles and therefore affect the court’s flexibility.
The noble and learned Lord referred to using delicate surgery on the clause and his scalpel has excised the word “exceptional”. As an alternative, my term “particular” is drafted in the hope that in presenting the Government with a menu, they might be tempted to choose one of them instead of rejecting everything. It is a little less extreme than complete deletion, but the noble and learned Lord’s point about criteria is, of course, the important one.
My Amendment 113GC also refers to Section 142 of the Criminal Justice Act, to which I have already referred, about purposes of sentencing. At the last stage my noble friend gave an assurance, saying:
“Let us be clear: of course the five principles are intact”.
However, he went on to say,
“why bring legislation if we do not intend to change things?”
Hansard then reports him as saying:
“We do intend to chance things”.—[Official Report, 13/12/12; col. 1432.]
I do not think it meant that.
My noble friend twice said that it was “not the Government's intention” to,
“jeopardise the prospect of rehabilitation”,
or to,
“detract from the court's existing obligation to have regard to the five purposes”.—[Official Report, 13/11/12; col. 1435.]
It may not be the Government’s “intention”, but I fear that the words of the Bill detract from the five purposes and create a hierarchy. They would require the courts to bring a different approach to sentencing and—as I have already said to the Minister outside the Chamber—I hope that at least he can put on the record some further assurance that is firmer than saying it is “not the Government’s intention” and persuade your Lordships that these words do not do what I fear.
Baroness Butler-Sloss
My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.
Baroness Linklater of Butterstone
My Lords, I add my voice in agreement with much of what has already been said. What my noble friend Lady Hamwee did in drawing our minds back to the Criminal Justice Act 2003 in particular was very helpful for the purposes of sentencing. The noble and learned Lord, Lord Woolf, speaks words of wisdom and we should pay serious heed to him. He pointed out that the overarching requirement of a sentence should be decided by the judge on what is appropriate. Ultimately, I suppose that it follows that it should prevent reoffending and if the punitive element fails to meet that test it is worthless. As was made clear when we debated this in Committee, every community order is a form of punishment so the punitive element that the Government seek is de facto present. Anything additional intended to be somehow more punitive for its own sake is unnecessary, except possibly as a political gesture, and it will fail the test of reducing reoffending anyway. As the noble and learned Baroness, Lady Butler-Sloss, said in Committee, it is also “profoundly unattractive” as an idea. I liked that term very much.
The Minister has got it wrong if he believes that this is what the British public want to see happen. Indeed, there is ample evidence to show from polling that what the British public want from sentences, particularly expressed by those who have been victims of crime, is that it does not happen again. Retribution or vengeance is not sought. The Government maintain that the caveat of “exceptional circumstances”, when a specifically punitive order can be dispensed with, is tightly defined. Yet we have just spent the last 20 minutes realising that nobody can define what it is sought—the definition cannot be pinned down. This was emphasised by the noble and learned Lord who found in the past that use of “exceptional” caused nothing but confusion—he said so eloquently. For the large number of offenders for whom there is an additional punitive requirement, this may be inappropriate and even increase the likelihood of breach and so on.
The reality of a purely punitive requirement on its own principally represents the Government’s gesture of what Chris Grayling said was putting punishment back into sentencing. That is what it comes down to. It interferes with the freedom of sentencers to set an appropriate sentence based on the facts. That is a serious deficiency. We undermine judicial discretion at our peril. It also fails to safeguard those defendants with particular support needs, whether those are mental health, health needs, learning difficulties, drug addiction et cetera, to name but a few. Of course, the fact is that it is precisely this range of such support needs that represents the norm in the prison population. They are not exceptional at all—exactly what the noble and learned Baroness, Lady Butler-Sloss, just said.
To impose a punitive requirement when the offender has these difficulties without also addressing the problems constructively would clearly be unjust. I could go on further but I will finish by saying that there was very important and interesting work done for the Government by Helen Bewley. She concluded that in fact punishment probably means a curfew, a fine or unpaid work. Her work demonstrates that punitive requirements on their own have no impact at all on the likelihood of reoffending but simply reduce the number of reoffences committed. The most effective outcome was from a combination of supervision with another requirement, with a punitive element added on. If the Government themselves acknowledge the risk that undermines the very rationale for such punitive orders, particularly if used on their own, how on earth can their use in every community order possibly be justified? Indeed, the likelihood instead is more offending, breaches and a generally less safe society—the very antithesis of what is intended.
Lord McNally
My Lords, sometimes I think that debates in this House are like two flotillas of ships passing in fog and not noticing each other. Most of the debate we have heard tonight we heard at Second Reading and in Committee. I can only again express my surprise at noble Lords who I know are deeply committed to this area of the criminal justice system. We have a situation where a Conservative Prime Minister expresses his complete commitment to the concept of community sentencing and a Conservative Lord Chancellor commits himself entirely to the concept of rehabilitation and bringing those ideas into legislation. We have now had three long debates on these issues; I will again try to explain where the Government are coming from but, in the terms that noble Lords have put it, I fear I will fail to convince them again.
The concept of punishment is part of—not separate or left on its own from—what I believe is a very worthwhile package put forward in a flexible way that fully respects the independence and judgment of the court. We keep to the word “exceptional” because without it there would be the opportunity to ride a coach and horses through what we are trying to do, which is to create a tougher system of community sentences that will produce greater public confidence. Let me put that in context: in March, when these proposals were first announced and the Prime Minister announced his support for the concept, Mr Sadiq Kahn, Labour’s Shadow Justice Secretary, said,
“Cameron cannot claim these measures as his own. We support community sentences that effectively punish and reform appropriate offenders because we were legislating on tougher community sentencing long before David Cameron”.
It really is not fair to start trying to split the points that have been made about judicial discretion, which is there, nor are these free-standing punishments. It has been suggested that Part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution. It has been suggested that there is no evidence to support requiring courts to impose punishment on offenders as part of community sentences. It is on the basis of such arguments that the noble Lord, Lord Ramsbotham, is again proposing that we do away with Part 1 of Schedule 16 entirely.
We are also considering Amendment 113GA. This would specify a list of requirements that courts might include in a community order as the punitive element. I am tempted to remind the noble Lord, Lord Rosser, that, as I have said before, the Labour Party has claimed to have punishment in community orders as part of its programme long before David Cameron became a convert.
The evidence that underpins the provision comes from victims and members of the public. Time and again, surveys have found that victims and the public see punishment as a critical purpose for community orders to deliver. I will quote only two of many. An ICM survey of victims of non-violent crime, carried out for the Ministry of Justice in 2007, found that punishment is seen as the most important part of a sentence, followed by payback to the community and then rehabilitation. More recently, research on community orders carried out this year by Victim Support and Make Justice Work found that victims,
“believe strongly in punishment and public protection”,
as the purpose of sentencing.
However, the evidence shows that the public are not confident that community orders are effective at delivering that punishment. For example, a survey carried out by Policy Exchange in 2010 found that 38% of the public perceive community orders to be soft, and a further 22% believe they are “weak and undemanding”. Similarly, the Opposition’s 2008 review of crime and justice found that the public saw community orders as a soft option, and that 90% of the public agreed that community orders should involve paying back to the community.
I remind noble Lords, as I did when the House last considered these provisions, that many of those given community orders have not committed minor offences. Some will have narrowly avoided custody. Some will have caused significant physical or mental trauma to victims through assaults. Others will have caused financial or emotional damage through theft, burglary or fraud. As a matter of principle, this Government believe that offences serious enough to cross the community order threshold should result in punishment. That is a principle with which I believe victims and the public would entirely agree. However, I do not believe that the existing community order framework gives victims and the public confidence that community orders effectively punish offenders. That is the reason we are introducing this provision.
I turn to the second concern that noble Lords have raised, which is that the provision will put the rehabilitation of offenders at risk. This will allow me to respond to the Amendment 113GB, in the name of the noble and learned Lord, Lord Woolf, which would disapply the imposition of a punitive element if the court believed that this would reduce the likelihood of preventing reoffending. Again, I will start from what victims and the public say. Of course the public do not want community orders to focus solely on punishment. The research by Victim Support and Make Justice Work, for example, found that neither victims nor the public wanted punishment to exclude efforts to rehabilitate and reform offenders. There are two important points I want to make here. One is about the public legitimacy of community orders. If the public are not confident that community orders are effective at punishing offenders, we cannot expect them to support our efforts to make them more effective at rehabilitating offenders. The second is that the public clearly recognise that this is not an either/or question. Community orders need to tackle the causes of reoffending but they also need to provide punishment. It is entirely possible for them to do both. For that reason I would argue strongly against the suggestion that a focus on punishment will prevent us from delivering improvements in reoffending rates.
Baroness Linklater of Butterstone
My Lords, perhaps I may quickly say that I never used the word “violence”. The word I used was vengeance.
Lord Ramsbotham
My Lords, I thank all those who have spoken in this debate. I am sorry that the Minister ended in the way that he did. As I said at recommitment, if the Prime Minister had been absolutely four-square behind the rehabilitation revolution, the speech that he gave would have been different. So much of that speech was in the opposite camp. It was the toughness agenda. I quoted great chunks of it at recommitment.
One of my problems with all this is that no one is keener on the rehabilitation revolution, and the prevention of reoffending and getting this right, than I am. However, I find a curious division between, on the one hand, the rehabilitation revolution and, on the other hand, all this punitive element as being evidence of a confusion which needs to be eliminated, not least on behalf of the people who have to prevent reoffending. I am talking about probation officers, prison officers and others who are unclear as to exactly where the direction is.
The Minister said several times that the courts must decide. Of course, they must. Currently, the courts know the form, as we have heard over and over again. Therefore, what is the point of telling them something that they already know and are already doing? It is unnecessary. If this proposal is defeated tonight, I hope that at least the Minister will listen to what has been said during the debate and that perhaps we may have some further reconsideration of Schedule 16, which has come late in this Bill and includes much that is in need of urgent attention. In particular, we must not forget the point that it is no good just saying that something is punitive, if what you want to do with and for offenders cannot be delivered. We still have not had confirmation that that can be delivered.
I have listened with great care to what the Minister has to say and I have considered all the evidence in front of me. I wish to test the opinion of the House.
Care Services: Winterbourne View
(11 years, 5 months ago)
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Lord Hunt of Kings Heath
My Lords, I thank the noble Earl for repeating the Statement. I know that Members on all sides of the House were appalled by the terrible incidents at Winterbourne View. I say to the noble Earl that we share a determination to ensure that all necessary steps are taken to prevent a similar tragedy happening again. Our goal must be to ensure that everyone with learning disabilities, including those with challenging behaviours, receives high-quality, decent and humane care and support; and that we finally end up with the practice of sending people with learning disabilities to long-stay institutions far away from their family and friends being a practice of the past.
The noble Earl has announced a number of welcome measures that are certainly a step in the right direction, but we remain concerned that the proposals may not be clear or strong enough to guarantee the changes that people with learning disabilities and their families urgently need. I refer the noble Earl to the NHS mandate, published only a couple of weeks ago, which says that there should be a substantial reduction in reliance on in-patient care. The noble Earl has clearly reiterated that in the Statement. Can he put a figure to that reduction? Is there not a risk that, unless the noble Earl is more precise about how and when that will be accomplished, we may not see the progress that we would wish to see?
Similarly, the Government say that they wish every local area to provide appropriate care and support. Can the noble Earl define what care is considered to be appropriate, and how it might be measured?
The noble Earl will probably know that I am somewhat dubious about the commissioning function in the National Health Service. We have, after all, had commissioning for more than 20 years under different Governments. One has to ask whether commissioning has led to enhanced outcomes. We see in what happened at Winterbourne View a catalogue of failure by commissioners. Vulnerable adults were placed in unsuitable places, often miles away from their homes. This dislocation, as a recent BMA paper pointed out, can further disturb adults who may already have had traumatic lives. These distances have made it difficult for families and carers to provide oversight and protection. As the BMA said following a round-table discussion in your Lordships’ House, commissioners need better to reflect the individual’s needs and relationships. It must be more local and less institutionalised. Containment must give way to personalised care. Would the noble Earl agree with those sentiments?
Can the noble Earl explain how the Government will ensure that all local commissioners have the necessary skills to make these changes? Clearly there was a problem with 150 primary care trusts. The question now arises: what will happen with the 212 clinical commissioning groups? Of course, they can rely on and draw on the experience of local authorities. I wonder whether the noble Earl can recollect our discussions during the passage of the Health and Social Care Act, when we on this side of the House argued that the commissioning plans of clinical commissioning groups should have to be signed off by health and well-being boards in order to draw the commissioning plans of both the local authority and the CCGs together into one cohesive approach. Would the noble Earl be willing to consider this issue again?
I am concerned that the authorisation process for CCGs does not mention learning disabilities as an area where competence is required. If this is such an urgent and important priority for the Government, can the Minister explain why this is the case?
I come back to the continued use of long-stay institutions because alternative care has not been developed in the community and at home. In a time of constrained resources, when we need to make the best use of taxpayers’ money, there should surely be one budget for people with learning disabilities, not separate funding for health and council care. How will the Minister ensure that there is a cohesive response at the local level from both the NHS and local government, with the budgetary allocation to make sure that that happens? Will the noble Earl name the specific individual leading this work within the NHS Commissioning Board so that Members of this House are clear who should be held to account?
On the regulator, the serious case review of Winterbourne View said that light-touch regulation by the Care Quality Commission was not appropriate for closed establishments, which should instead be treated as high-risk, with frequent unannounced, probing investigations. The review strongly recommends that these investigations speak to residents’ families and to patients, including those who have left the institution and who may feel more able to speak out and speak up. The Care Quality Commission has just completed a focused probe of inspections of long-stay institutions for people with learning disabilities. I think that the implication of what the noble Earl said is that that work will continue, but it would be good to have some confirmation from him.
Can the noble Earl tell me about the CQC’s capacity to undertake this work? I am one who believes that the previous leadership did the best that they could in the circumstances in which they found themselves, notwithstanding the great deal of criticism that they had to take. I have been very impressed by the approach of the new chief executive of the CQC, David Behan. However, I remain concerned that too many responsibilities may have been put on the CQC for it to be able to discharge them effectively. Clearly, in relation to places like Winterbourne View, this has to be an important priority for the CQC. Can the noble Earl reassure me that he is convinced that the CQC can take this on without being submerged by all the other responsibilities, including the whole of primary care which it has been given to address?
Whatever the shortcomings in commissioners and regulators, responsibility ultimately lies with those who provide the services; I agree with the sentiment of the Statement on that. One of the most disgraceful aspects of Winterbourne View was that vulnerable people were neglected and abused while the hospital’s owner, Castlebeck Care, charged huge fees and apparently made huge profits. The serious case review says that Castlebeck made decisions about profitability, including shareholder returns, over and above decisions about the effective and humane delivery of assessment, treatment and rehabilitation. My understanding is that the average weekly fee for residents at Winterbourne View was £3,500, rising to £10,000 for one patient.
While the hospital generated profits of almost £5 million, the review could not determine how much money went back into the hospital, and how much was creamed off for profit. The reason for that is the company’s complex financial structure, with Castlebeck itself owned by private investors based in both Jersey and Geneva. That has made it virtually impossible to hold the company to account. Can the noble Earl confirm that the company has so far failed to meet two of the serious case review’s key recommendations: that it should fund therapeutic services for all ex-patients, and pay for the cost of the review itself which has so far been entirely borne by the taxpayer? The review’s authors say that the corporate responsibility of Castlebeck remains to be addressed at the highest level.
In that regard, I very much welcome the commitment made in the Statement by the noble Earl to the Government examining how corporate bodies and their boards of directors can be better held to account, including a “fit and proper” test for the directors of those companies. Will the noble Earl consider requiring private companies to publish the names of their owners, the members of their boards and the details of their financial structure before they can be licensed and registered to provide publicly funded care? We cannot let the excuse that information is too commercially sensitive be considered acceptable, when what is at stake is the care of very vulnerable people, paid for using substantial amounts of taxpayers’ money.
Finally, perhaps I may ask the noble Earl about carers and the vulnerable adults themselves. As the BMA report says, carers and adults have important roles to play in identifying needs and helping to co-ordinate and supervise their care. Can the noble Earl confirm that the involvement of carers and the vulnerable adults concerned will come to the fore when taking forward the work of his department, the CQC, commissioners and providers?
How we care for the most vulnerable people is clearly a hallmark of a decent society. The scale of abuse at Winterbourne View was simply unacceptable in the 21st century in one of the most prosperous nations in the world. I have been encouraged by the tone of the Statement repeated by the noble Earl. There are clearly issues that we would like to see addressed and I look forward to his comments. I also look forward to the debate in your Lordships’ House on Thursday, when we will no doubt have a more detailed go at this. However, it is clear that there is considerable support for the kind of decisive actions that need to be taken to ensure that this cannot happen again.
Earl Howe
My Lords, I am very grateful to the noble Lord for his constructive comments and I welcome his commitment to a shared agenda for improving care for those with learning disabilities and autism. I agreed with a great deal of what he had to say.
As to his individual questions, he first asked whether I could articulate the number of in-patient places we expect to be reduced during the coming months and years. My answer is that we want to see a rapid reduction in the number of people with learning disabilities, autism and challenging behaviours who are in hospitals or residential care and who are away from their home areas. That is not to say that there is no role for assessment-and-treatment centres, which clearly have a role—but it is limited. It is important to ensure that everyone has a care plan built around their individual needs, rather than to say that there should be some kind of top-down national target for the number of units. We believe that plans should be in place and put into action as soon as possible. All individuals should be receiving personalised care and support in the appropriate setting for them no later than 1 June 2014, and we shall work towards that end. It is very much a case of defining the appropriate care for the individual.
To pick up the noble Lord’s final question about the involvement of carers and the vulnerable adults themselves, yes, they should indeed be involved in the planning of care. It is families, carers and the individuals themselves who know best what they need. It was one of the besetting failings of this terrible saga that families and carers were not listened to, and not only about the whistleblowing to which they wanted to alert the authorities. They also had a very good idea of what type of setting and care their loved ones would best respond to—and they were not listened to on that score, either.
The noble Lord asked about clinical commissioning groups and the extent of their expertise in commissioning appropriate treatment for those with learning disabilities. I agreed with a great deal of what he said. Commissioning expertise for this group of people is, frankly, in short supply, and that is why the department will fund the joint improvement programme being organised jointly by the NHS Commissioning Board and the Local Government Association. They will be tasked with working closely with clinical commissioning groups and their local authority partners over the next two years, to share and implement best practice. There has to be, as the noble Lord said, a cohesive approach. Joint working here is vital because we are looking at determining not only the right setting for an individual but what the right treatment for that person should be. That necessitates a joint approach. I should add that we would set an expectation that there be pooled budgeting arrangements to drive that forward.
The noble Lord asked me who on the Commissioning Board was leading in this area. Sir David Nicholson has made clear his personal commitment to take action on this. Indeed, the board is meeting people with learning disabilities this Thursday, but the lead director on the board is Bill McCarthy.
The noble Lord asked me what the Care Quality Commission intended to do by way of ongoing work. The CQC will continue to carry out unannounced inspections, which will involve people with learning disabilities and their families, as I mentioned when I repeated the Statement. That will be based on risk, and the CQC has made it plain that these particular settings are a priority for it. We expect it to take account of all the recommendations arising from the serious case review, including the views and statements of those who have left establishments of this kind.
The noble Lord asked me about Castlebeck and the liability that it should have for the ongoing costs of patients who were at Winterbourne View and, indeed, the cost of the serious case review. My reaction is that Castlebeck should give serious consideration to that suggestion. However, there are currently no powers to make that happen, and the Government are keen to ensure that in extreme cases such as this there are consequences for providers of care that is of poor quality.
As regards a requirement for companies to be more open about their board structure and corporate structure, this is something that we shall be looking at over the next two or three months, and we will come forward in the spring with our conclusions on how companies and their boards can better be held to account.
Baroness Hollins
My Lords, I welcome the report and the detailed actions that are listed in it. Indeed, it fills me with some hope after so many years of commissioning failure. The proposed change support programme is to be led by the NHS Commissioning Board and the Local Government Association. There is something ironic in responsibility for leading this change being vested in those who primarily have been responsible for the current failure. The evidence is that local authority and NHS leadership do not have the skills or knowledge to effect change. Indeed, my former colleague Jim Mansell’s first report on challenging behaviour was published 20 years ago and made similar recommendations to those in today’s report. Can the Minister confirm that the programme board will indeed be expected to engage with those from the learning disability sector, who understand the issues involved in the design and delivery of the support programme? Finally, why does the report make little or no mention of the need to provide access to the same range of mental health treatments that other citizens have access to, including psychological therapies?
Earl Howe
The noble Baroness brings us to a set of key points. She said that in her view the NHS and local government simply do not have the capacity to address these issues properly. In many respects we would agree with that, although it would be wrong to make a blanket statement about the whole country because we know that very good pockets of commissioning and provision exist. One of the tasks of the joint improvement team will be to identify those areas of best practice, and to enable those operating in those areas to go out and mentor other areas. Part of the sum of money that we set aside will be devoted to enabling those high-performing areas to backfill the places while they are engaged in that mentoring exercise. Her basic point is well taken. We think there is a job to do here but it is one of those things that the Board and the Local Government Association need to oversee on a national basis.
That is only a short extension from the function of the Commissioning Board in general, which will be to support commissions. We are grateful to the Local Government Association for its overseeing role for local authorities. I fully expect that they will engage with the learning disability sector. I commend to her the concordat, which is accessible on the department’s website, and she will see from that that the 50 organisations that have signed up to it include a number of voluntary organisations in this sector. Jointly, these bodies have committed to a programme of action. It is not just about defining what needs to be done but about how it will be done. It is an impressive set of commitments that those bodies have signed up to.
Lord Pearson of Rannoch
My Lords, the Minister spoke about the need for a fundamental change of culture but I heard nothing in the Statement about training, so I hope that he will forgive me if I ask again a question I have been asking for over 20 years about the training of our teachers, social workers and, in this case, care workers. I do so from my background in the 1980s and 1990s on the body that validated all our teacher training courses and from having taken quite a close look at the curriculum then offered by the Central Council for the Education and Training in Social Work. At the former, I was shocked to find that our mission statement was “to permeate the whole curriculum with issues of gender, race and class”.
Since then we have seen Nursing 2000 put the training of nurses away from hospital wards and into the social science departments of the former polytechnics, with results that I predicted at the time. Have the Government looked into the curricula of the training of care workers and of those responsible for this and similar disasters? What training do they get, if indeed they are trained at all? What genuine qualifications do they have before they commence training? Are they proud of what they do, or are they just in it for the money? I hope I am very out of date, but I look forward to the Minister’s reply.
Earl Howe
My Lords, the noble Lord is not out of date, because this is a key issue and I am grateful to him for raising it. It is crucial that staff who work with people with challenging behaviour are properly trained in essential skills. Contracts with learning disability and autism hospitals should be dependent on assurances that staff are signed up to the proposed code of conduct that the Department of Health has commissioned from Skills for Health and Skills for Care and that there should be minimum induction and training standards for unregistered health and social care assistants. Those standards should be met. I would say that owners, boards of directors and senior managers of organisations that provide care must take responsibility for ensuring the quality and safety of their services. There are requirements set out in law in that regard, and they include safe recruitment practices, which necessarily involve selecting the people who are suitable for working with people with learning disabilities, autism and challenging behaviour, and appropriate training for staff on how to support people with challenging behaviour.
From April next year, Health Education England, which is the new, national, multi-disciplinary education and training body, will have a duty to ensure that we have an education and training system across the piece but including a system that can supply a skilled and high-quality workforce for this sector.
Baroness Browning
My Lords, my noble friend said that families’ concerns were ignored, but would he accept that there is huge push-back across all the public services involved with this group when anyone who is a family member of someone over the age of 18 tries to make representations on their behalf? I experienced that again personally, yet again, only this week. Paragraph 3.9 of the department’s response makes reference to:
“Where an individual lacks capacity and does not have a family to support them, the procedures of the Mental Capacity Act 2005 should be followed”.
I am appalled at the way in which the Mental Capacity Act, an excellent piece of legislation, is virtually ignored by many professionals who not only do not advise people of their rights under the Act but just ignore it. If ever a piece of legislation cried out for post-legislative scrutiny, it is this Act of Parliament. It is a strong, good piece of legislation but it needs to be enforced; we need more people to know about it and to use its powers to protect the vulnerable.
Earl Howe
My Lords, my noble friend is absolutely right. Over the coming months the Department of Health will be working with the Care Quality Commission to agree how to improve the understanding of the deprivation of liberty safeguards and to ensure compliance with them. We are very clear that this work is necessary to protect individuals and their human rights. We will report the results of that work by spring 2014. During 2014 the Department of Health will update the Mental Health Act code of practice, and this will also take account of findings from the review.
Baroness Wall of New Barnet
My Lords, I also congratulate the Minister on repeating this Statement made earlier in the other place, and I welcome the report itself. I want to refer to a couple of areas and follow up his reassurance about the patient care pathway. The importance of that pathway, I am sure he knows, is not only in having it but ensuring that it is carried out with regular updates, and that the progress being made is taken into account to make sure the pathway is staying in touch. That does not always happen, so having the patient care pathway is only one part of what I hope he would ensure would happen.
The other part, and the Minister may not be surprised at this, is Part 7 where again, as my noble friend Lord Hunt has done, I urge him to think again about another area. With regard to the expectation as far as training goes—while Skills for Health and Skills for Care, as mentioned in the document, are doing a great job—it is absolutely crucial to recognise that just the induction for health care assistants in social care really is not enough. I have pleaded with the Minister on many occasions in the context of hospitals. It is equally if not more important that healthcare assistants have the confidence given to them by being registered and qualified in the way that registration ensures, so that the very difficult and important job that they do—and more of them are doing it than are working in any other area—is suitably recognised. I urge the Minister to take away that request in the context of this report, and to look again at ensuring registration for these particularly important workers.
Earl Howe
My Lords, I am grateful to the noble Baroness for what she has said. She is right to point out that the patient pathway is integral to any proper planning process for individuals, and that it should be built around the particular individual’s needs and preferences if possible. This brings us back to the role of an assessment and treatment centre: namely, as its name implies, to assess the needs of a person and to define what their care plan should be over a future period of time. As I mentioned, the care plan is best when it is drawn up with the benefit of advice from the individual, their family and their carers. Therefore, if we want more community care, we need to ensure that there is the capacity in the community to deliver good patient pathways to individuals. We are clear that some areas of the country are ill equipped to do that. Part of the task of the joint improvement programme will be to look at the facilities and resources that are required in local areas to enable commissioners to plan those patient pathways with confidence.
On the issue of the training of care assistants, I take the noble Baroness’s point. I think that it is common ground between us that those who lack a recognised qualification should nevertheless be enabled to upskill themselves and get themselves on a register to prove that they are familiar with and abiding by a code of conduct that has been recognised, with the register itself being duly accredited. Our position is that the system of voluntary registration, almost by definition, will result in an upskilling of the workforce, but it is not the whole story. There is a role for employers to ensure that there is proper supervision of care assistants, and that proper delegation takes place that does not require a person to do more than he or she is skilled to do. There is no single answer here, but I believe that voluntary registration is a good start.
Baroness Masham of Ilton
My Lords, following from the question about registration and regulation, is the Minister aware that people such as nurses and care assistants who have been sacked for dishonesty or undertaking dangerous procedures with patients can take a job anywhere as a care assistant? Without regulation, how will he control the matter? It is very dangerous for vulnerable patients because these establishments are so hard-pressed to get staff to work in their centres that they will take almost anyone, without even taking up references.
Earl Howe
My Lords, the noble Baroness raises another important point. In this country we have a list that acts as a check on those who have abused or otherwise maltreated adults or children and have been dismissed on that basis, to ensure that the scenario that she has painted in which someone who has committed such an offence is re-employed cannot occur in practice. I am not sure that I recognise the situation that she outlined because the POVA system is designed to ensure that dangerous people are not employed to look after the vulnerable. However, I will gladly drop her a line in writing to set out what we propose in this area.
Lord Willis of Knaresborough
My Lords, I echo the comments around the House that this Statement is appropriate. The fact that it has support across the House demonstrates that there is unity in terms of tackling the issue. I spent a significant part of my professional life working with young people with severe behavioural issues. As the head of a school, I, together with my governors, would be held responsible for what happened to those young people—and rightly so. The weakness in the Statement is that it does not go far enough.
The Minister was right to make clear, and I am glad he did, that it was the management and the corporate owners of the home who were principally responsible, yet it was the staff who were prosecuted and jailed. I would like to hear what steps are going to be taken with the CPS to deal with corporate responsibility, and why that is not the priority here. Without it, frankly, a lot of the things that appear in this report will not have the necessary teeth.
I respectfully but fundamentally disagree with the noble Lord, Lord Pearson, on the training of nurses and other health workers. The more that we demand of staff in terms of their education and other opportunities, the better the staff we will ultimately get. However, I agree with him and with the noble Baroness, Lady Masham, that it cannot be right that the most vulnerable people in our society are looked after by people whom we cavalierly say do not require qualifications. How unacceptable is that in the 21st century? A voluntary register of an organisation that is disreputable is utterly and totally meaningless. We need a commitment on this from the Government. I agree that this will be over a period of time; it will not happen tomorrow. However, simply stating, as recommendation 15 does, that by 2013 there will be a voluntary register will not give parents and carers of these very vulnerable adults and young people the support and comfort that they need. I plead with the Minister to make the case in the department for mandatory registration, to ensure that there is appropriate regulation and that nobody works with these young people or adults who does not have appropriate qualifications and training.
Earl Howe
My Lords, I am very happy to recognise the excellent work done by my noble friend in the report that he published and submitted to the Royal College of Nursing, which we will debate later this week. He rightly drew attention to the responsibility that lies with leaders of organisations and boards of directors. They should be fully held to account for poor quality or for creating a culture in which neglect or abuse can happen. I completely agree with that. He was right to say that despite convictions for some front-line staff, Winterbourne View has revealed weaknesses in our ability to hold to account those who were higher up. Owners, boards of directors and senior managers must take responsibility for the quality and safety of their services.
We are determined to strengthen the accountability of boards of directors and managers, but we are not yet in a position to say exactly how that should be done. It is not as easy to define a legal route as it might first appear. It is perhaps easier to do so in the area of financial irresponsibility or negligence than it is where value judgments have to be made over the quality of care delivered to a group of individuals. However, I can tell my noble friend that this is one of the priorities that we have set ourselves. I listened with respect to his suggestions on the compulsory registration of care workers. I repeat what I have said in the past: the Government’s mind is not closed to this suggestion.
Energy: Efficiency
Lord Teverson
To ask Her Majesty’s Government how they intend to implement their strategy for energy efficiency.
Lord Teverson
My Lords, I thank the group of noble Lords who are joining in on this debate. I thank them for their dedication towards the important subject of energy efficiency. It is quite appropriate today, perhaps, that E.ON, the last of the big six, has just announced its energy price rises for dual-fuel customers of some 8.7%. This means that we have had energy price increases over the last few weeks of between 6% and 11%, which is not insubstantial when we have household average earnings going up by 1% or 2%.
As a nation and as households, we tend to tackle problems and think about them more when the bill arrives on the doormat, whether it is the electricity bill or the gas bill. The nation’s example would be the impending £100 billion to £200 billion invoice that will arrive for new energy infrastructure over the next decade—depending on whether you include generation alone, or all the other areas of networks and the national grid and all of that side as well. At that point, you think you must make changes in the way that you live and you have to save on that expenditure. That is why energy efficiency and the efficient use of energy are core areas on which, as a nation, we must make sure that we concentrate.
Indeed, we have had a number of recent successes or moves forward by the Government. We have had the publication of the electricity market reform Bill, which may provide us with opportunities for demand reductions in future. We will see how that progresses through Parliament. The Energy Efficiency Deployment Office was set up in the last year, which I welcome very much. We have had the consultation on demand reduction at the end of November. We have also had a government energy efficiency strategy, which is what caused me to call for this debate. The sad thing was that, rather predictably, that strategy was not really noticed or commented on by the press or the wider community. I suppose that, in comparison with gas fracking, wind turbines supposedly blotting the landscape, the stops and starts of new nuclear or maybe even the occasional arguments between the Treasury and DECC, an energy efficiency strategy is not seen as particularly interesting news. I very much differ over that, and I will explain exactly why.
The most important thing is that there are a number of benefits from such a strategy and from energy efficiency. First, and perhaps most importantly from a human point of view, is that of fuel poverty. Clearly, if we have an energy-efficient household stock and economy, fuel poverty will go down. At the moment there are 3.5 million households in fuel poverty. Cold winter deaths are thought to be somewhere in excess of 25,000, costing the NHS £1.3 billion—but, far more importantly, there is the human cost of those deaths to those individuals and to their families.
Energy efficiency means that emissions come down and there is greater energy security. It also means, according to the Secretary of State, that we will need 22 fewer power stations in our investment programme by 2030. It could also mean that we do not have the cost of winter fuel payments that at the moment cost the Exchequer £130 million each year in subsidising people’s fuel bills, when what we really want is for them not to have to pay those prices anyway. Of course, the other big benefit of energy efficiency is that we actually reduce the energy bills not just of households but of British industry as well, making it more competitive.
Therefore, we currently have a number of initiatives, most of which I welcome. The Green Deal operates from 28 January 2013, and with that we have the open home networks. Regrettably, we have had a gap between the Green Deal starting and CERT ending, and some strain put on the industry and the house refurbishment sector over that time. We have the energy company obligation coming in. Today we announced simplification of the carbon reduction commitment, which I very much welcome. I hope that soon it will recognise renewable energy usage as well. We have the smart meters roll-out programme starting in 2014 and the enhanced capital allowance for business.
Despite having that collection of measures, what we have is seen by industry in particular and households to a degree, as a lack of clarity about the future landscape. Business has certainly not been aware of all those incentives. Although we have a carbon plan, I believe that for the first time we have a proper and important strategy for the future in this area.
I have always been pretty critical of the United Kingdom’s energy performance as regards the houses and factory units that we built in the 1960s and 1970s. However, going through the figures, I have to admit that over the past 20 years or so, under Governments of different colours, we have not done too badly. In fact, total UK energy usage has been flat since 1970. Since 1980, energy intensity—that is, the amount of energy we use per unit of GDP—has gone down 52%. That fall has been quicker over that period than that of the United States, Germany, Japan or France. We are one of the lowest of the major developed nations in terms of energy intensity. Of course, one of the reasons for that is that we have given up producing most things and we have a service-based industry. The financial services industry does not create much at all, according to some people, but it certainly does not create a lot of carbon emissions or have high energy usage.
However, since 1980, although energy usage as a whole has stayed the same, electricity usage has gone up by 60%. Even with present policies, another 10% rise is expected by 2030 and that could go up to 15% when we move to electric vehicles and a switch in space heating from oil and gas to electricity. However, the prize is great: some 150 terawatt hours of savings could be captured by 2030 according to at least relatively independent reports. Given that in 2010 total usage was 328 terawatt hours, that is a saving of 45% of current consumption. However, the risk that has been identified is that 92 terawatt hours of that will not be achieved, which is a quarter of the expected 2030 electricity consumption. That is why the concentration on energy efficiency for electricity in particular is so important. In December 2001, the Government’s carbon plan said that if we are to cut our greenhouse gas emissions by 80% by 2050:
“Energy efficiency will have to increase dramatically across all sectors”.
However, it is not just a matter of electricity usage. I have a particular concern about the zero carbon homes programme to be implemented for new homes from 2016 and for new industrial premises from 2019. Those two are a core area. The energy efficiency strategy identifies four barriers, including an underdeveloped market for energy efficiency. That market has grown but is still underdeveloped, particularly in comparison with the United States. There is also a lack of trusted and appropriate information. I hope that having smart meters in households will start to put that right. Further barriers are misaligned financial incentives, although the Green Deal is trying to do something about that, and undervaluing energy efficiency generally.
I have several questions for my noble friend the Minister. How will the Government start to overcome those barriers? That is not fully outlined in the strategy but perhaps that is still to come and the work is still to be done over this current year. Smart meters are the way to engage the public much more broadly. I would be interested to hear from the Minister where the Government are in terms of getting public engagement. Will there be a system like the TV digital switchover that was so successful? How will we get the demand side incorporated in the Energy Bill that is starting to go through Parliament? How will we integrate the European energy efficiency directive that is to come into force in 2014 into our own strategy? Can the Minister assure me that there will be no more watering down of the zero carbon buildings?
One billion pounds are being put forward for carbon capture and storage and £100 billion of investment in power generation is expected. Given that we have a housing stock of 26 million homes, that £100 billion of investment could be used in spending £4,000 on each home to cut demand in the first place. There is a great prize to be won. It is not just a case of win-win; in this case it is win again and again and again. I commend the Government’s recent work on their energy strategy and ask them to deliver it.
Lord Judd
My Lords, it is good to follow the noble Lord, Lord Teverson. Nobody takes these issues more seriously than he does and his knowledge is daunting. What he is raising and all the associated issues are absolutely central to future survival, sustainability and prosperity of our nation. The deliberations that are going on in government and elsewhere are of crucial significance. We all ought to be focusing on them, not just the usual few who concentrate on these matters.
At the outset I should mention Doha because it is intimately related to what we are talking about. Doha has been a significant step. I think that there are a lot of sceptics who feel that what was agreed has yet to be implemented. We want to see the evidence of implementation because it is in the implementation of what was agreed that the real tests will be, not in the good intentions. In retrospect it could turn into a cynical exercise. It must be made effective. I hope that the Minister will take a moment to reassure us on that issue.
One of the things that has become very clear is that in a country which has become used to cheap and easily available energy, those days are over for ever, and we have to adjust our behaviour as a nation to meet that. Of course, issues of equity and justice apply internationally at Doha but also in our own society. The methods of production, whether that involves plant or distribution, can have a disproportionate impact on less articulate, less well placed communities which have everything dumped in their immediate vicinity because the forces of NIMBYism take control. There is a real need to concentrate all the time on equity and justice in our own society—not to mention the aesthetic and environmental issues. Do we want to have a country worth living in or do we want one littered with energy infrastructure and distribution systems in which we can no longer get spiritual regeneration? These are all crucial issues.
I suggest that those issues are all related to the need in our nation for an immense culture change on the demand side. We really have to nurture a sense of national responsibility. Let me take, for example, fashion. I hope this will not be regarded as a joke because I think it is a very serious matter. We are entering the coldest part of winter. Fashion is all about smartness and elegance and how you look. Surely in a society that was taking its energy needs seriously, it would be about keeping warm. Why do we not give higher priority in our clothing and other designs to the need to keep warm and use less energy? What about our Parliamentary estate and Whitehall? Yes, there have been moves in this direction and they are to be welcomed, but it is still tinkering: we all know that. Noble Lords should walk around this building at night. How many lights are left on by us all? How much equipment is left on which need not be? Let us look at Whitehall and government institutions. How much waste is there still at that level? Where is the example to the nation? Surely, in our schools and universities, we need to have far more emphasis on talking about energy and economics with youngsters, students and post-graduates. There should be far greater emphasis on conservation. In engineering, why is there not greater priority given to the need to work on conservation, as distinct from just production methods and efficiency? We must put conservation and a changed living style much more centrally into our deliberations on these issues.
I find an inherent contradiction between a preoccupation with getting efficiency, trying to control prices and taking our responsibilities—some of which I just mentioned—seriously and having so much of the energy system dominated by private enterprise, which is about profit. There is a contradiction there. I am not ashamed to say that I have never been—I hope—a dogmatic person in my political beliefs, but I believe in pragmatism in the age in which we live. I cannot help but be convinced that the sphere of energy is an excellent example of an aspect of national life which should be better looked after by the nation as a nation within a co-ordinated and comprehensive approach to the necessary planning. We need to get the right people to do the right things within it rather than, as at the moment, trying to regulate the market as it develops its own thrusts and priorities. It seems that we are putting the whole thing back to front, and I would like to see a reassertion of national responsibility in these matters. That involves all the points that I mentioned earlier, but also involves ensuring that it is not just a departmental responsibility, but that it goes into the realms of higher education, the Civil Service and the parliamentary estate.
That brings me to one last issue—and I know that the Minister, who takes this matter very seriously, will forgive my mentioning it. There is one area in which, because of our insatiable demand for energy, we have a most critical issue. We have decided that it is necessary to have another generation of nuclear power. I cannot say that I am thrilled by this, but I am persuaded that it is necessary. Having been in government myself, I realise that decisions sometimes have to be made on balance, but once you have made them, the task is to get on with them as responsibly as possible. That is my general position on nuclear energy.
There is a problem, though, that we are going into the next generation of nuclear energy before we have started to solve the problem of the waste from the first nuclear generation. Scientists and others will tell us that we need not worry because the solutions are there, but the point is that we have not done it yet. I declare an interest as somebody who lives in west Cumbria. From another galaxy, we would look highly irresponsible for getting ourselves into a position now with this lethal stuff—which already exists and will have implications with gigantic dimensions for future generations hundreds or even thousands of years ahead—where we are leaving the decision as to whether we proceed with what is already on the map as a possible solution to the local authorities. I know many of the people in the local authorities and have great respect for them and admiration for their public service; but how do they begin to have at their disposal the expertise, knowledge and background to make key and critical decisions in this area?
This is a national responsibility that needs to be decided at the national level, even though of course we then consult with local authorities about the implications of how it might go forward. I would be far happier about the whole issue, as it develops in west Cumbria, if it was clear that, after bringing to bear the best possible minds, and scientific evidence, that we can as a nation, this was the best possible place to have it. We should have the best possible place in the UK, and not just somewhere that has been bamboozled, bludgeoned and bribed, if I may use the term, into having it. It is crucial that this is taken seriously, and we have all have a responsibility in this House for that.
I conclude with the theme I raised a little earlier. Whatever the point at which we dip in to these complex issues, I hope that we have not given up on strategic thinking in which we say, “Now look—efficiency, the cost, its social and environmental implications, and the safety of future generations cannot just be left largely to market forces playing, for example, against local authorities”. These issues demand national strategic thinking and planning of the highest quality.
Lord Whitty
My Lords, I am grateful to the noble Lord, Lord Teverson, for starting this debate and will go on to agree with quite a lot of what he says. However, I detected a note of slight depression in his voice at the paucity of attendance in this House, which reflects a rather longer-term lack of attention to energy efficiency in the spectrum of energy issues facing us. I was the Minister responsible for energy efficiency for several years in this House, among other responsibilities. When Defra had a debate on hunting about 500 noble Lords were here, but as soon as we got on to energy efficiency, we had about the same number as we have tonight. That reflects a bigger picture because energy efficiency is not sufficiently highly regarded in Whitehall and among other departments; nor, in many respects, is it among industry and society as a whole.
My basic theme tonight will be that the Government need to be much more aggressive in proclaiming the benefits of all dimensions of energy efficiency and in making sure that business and society get engaged in developing better energy efficiency in our country. The noble Lord, Lord Teverson, is quite right that the document that he referred to did not receive great publicity. It spells out all the benefits and some of the proposals for dealing with them, but it is pretty incomprehensible to the vast majority of people and was not picked up at all by the media. However, as it says, the return on investment pound for pound in energy efficiency is hugely higher than from the same amount of money invested in other aspects of energy and in most aspects of industry. The return is huge and, of course, energy saved is also carbon saved and is the most efficient way of saving on greenhouse gases.
We see a lot in the papers about shale gas, the nuclear option, whether Mr Putin is going to switch off the gas and the fact that there is a bigger coal burn than was anticipated in Britain, Europe and the rest of the world—all of which is setting back the kind of issues my noble friend Lord Judd referred to at the beginning of his remarks, in terms of climate change.
Energy efficiency is vital and we need to proclaim that from the rooftops, not add it on as the final chapter of every energy Bill and White Paper that we have seen over the past 20 or 30 years. We have to be careful not to overclaim, because as in the field of climate change and renewable technology, there are a lot of sceptics out there, who seize on any flaw in our argument. Energy saved is not 100% saved because there is a rebound effect and there are people out there who will therefore write off investment in energy efficiency.
Obviously, people use money saved from cutting their energy bills on other things, including more energy for something else or simply to keep their homes warmer. There is a rebound effect. The Government put it fairly low, at 15% for domestic consumers and almost nil for industry. It may be higher than that but it is never 100%; it is rarely more than 20% or 30%. It is a vast improvement to invest in energy efficiency, compared with investing anywhere else.
Of course, despite the fact that the public, business commentators and the media express very little interest in this area, we have had an era of hyperactivity from the Government, and rightly so. It was true of the previous Government—we did some good things, as have this Government—but we ought to be on the verge of a new era in this respect. We have the Green Deal, about to be launched properly—we have had a soft launch; I do not know if anybody noticed it—and we have smart meters. I never know why the two strategies are not combined because that would make a lot more sense to householders and consumers
We should recognise that a huge amount of work is being done by DECC in preparing for the launch of the Green Deal: accredited assessors are being trained, the products that are eligible for the Green Deal are being defined, the regulations are being put in place, and the Green Deal Finance Company is being set up. But this all starts in about six weeks’ time and there is hardly a punter out there who knows anything about it.
To a large extent, the same was true of smart meters. We now have standards for smart meters. In 2014 they become mandatory: all utility companies will be obliged to install smart meters in every home in the country, supposedly, over a period of five years—a massive conversion programme. How many householders actually know about it? About 40%, apparently, have vaguely heard about smart meters; a much smaller proportion know what they will do, how to use them and the benefits they will bring to consumers and society.
As a minimum, we need a major education and information campaign on these two programmes, and we need it now. It needs to be government-led; it must not be seen by householders as a marketing exercise by particular companies. Unfortunately, the companies involved in setting up something as complex as the Green Deal include energy companies and local builders, with banks providing the financial back-up. They are all absolutely needed and provide a huge amount of expertise, but they are not sectors that are hugely trusted by the average punter. We need that trust, which only government can convey.
The noble Lord, Lord Teverson, referred to the digital TV conversion. I was a bit sceptical that we would manage to deliver that programme, but of course it was delivered on a rolling region-by-region programme, whereas with the Green Deal and smart meters we are starting everywhere at the same time and hardly anybody knows about it.
We need a well resourced strategy of consumer information and engagement. Only a few weeks ago, the Minister said that we would be getting a strategy on engagement very shortly. Time is running out for 28 January. Will we get it before Christmas? Will we know what kind of programme is being run or supported by the Government before the Green Deal comes into play? Will we have a central delivery body, as elements of the industry advocate? At what stage will the Minister know the answers?
Of course, energy efficiency is not just about passive measures to improve the structure and resilience of buildings. At least two other dimensions should be included in an energy efficiency strategy. One is the issue of use. Even new buildings built to an extremely high standard do not in the event perform to that standard because the users do not know how to make maximum use of them. That is partly because the developers and architects are rarely the actual occupants and users; but there are also issues of product standards in our homes, in industry and in public buildings. The second dimension is the inefficiency in the system of distribution and transmission of electricity and gas, where a huge amount of heat is lost. We have never properly developed combined heat and power into being a normal part of industrial and domestic residential developments. Yet it can save 30% of what we generate in even the most efficient forms of energy generation, which disappears almost immediately into heat. We need far better development of our systems so that we use this heat and maximise the efficiency of the energy that we generate.
Some of the most obvious things are still a problem in parts of the country. I wrote a report last year on Northern Ireland, for example. The vast majority of households and small businesses in Northern Ireland still use oil for their heating, which is both expensive and extremely damaging in terms of carbon emissions. It would be much more efficient simply to connect them to the gas network. The same is true of parts of rural England and Scotland.
Almost my last point is this: the noble Lord, Lord Teverson, referred to the recent announcement by E.ON and the other energy companies. Clearly, price and the expectation of increases over the next few years will drive people and industry to look at energy efficiency more closely. However, the present tariff structure in our energy system for domestic consumers and in the contracts that the energy suppliers make with industry is doing exactly the reverse. We still have a situation where the more you use, the cheaper energy becomes. While the Government are struggling to make a reality of the Prime Minister’s commitment to offer everybody the cheapest tariff—I have a Question about this later this week—they should also look at how we can get Ofgem and DECC to move towards a tariff system that encourages rather than discourages energy efficiency.
Baroness Worthington
My Lords, I am grateful to the noble Lord, Lord Teverson, for initiating this debate which gives us an opportunity to discuss the Government's energy efficiency strategy. A number of noble Lords have commented on the fact that to date this has probably not received its due attention. It is a shame there are not more noble Lords in the Chamber, which again reflects the fact that the strategy is not receiving the attention it deserves. Energy efficiency and the management of our demand for energy should have a special place in energy policy as that is the only policy which directly addresses all three elements of the energy trilemma: namely, that we seek to reduce carbon emissions while increasing the security of supply and keeping costs low. Reducing our demand for energy meets all of those objectives. One would therefore assume that it would take centre stage in the newly published Energy Bill. However, a quick search of the Bill reveals that energy efficiency is not mentioned once and that demand reduction is only mentioned twice. This compares to nuclear which is mentioned 350 times. I acknowledge that this is a crude methodology, but it gives a clear indication of where the Government's priorities lay in the formation of that Bill. Nuclear may help to reduce carbon, and it does help to diversify our energy sources, but if press reports about the strike price are to be believed, it may not be cheap. Recent reports of yet more budget overruns in France, where EDF is building a reactor of the same design as that proposed for Hinkley Point, are not encouraging.
The one area of the Bill that talks about managing demand for energy is under the capacity market mechanism described in Chapter 3. This section is, however, merely enabling and there is no plan to introduce the mechanism before the end of the decade. A consultation document published alongside the Bill shows just how far we are from a well-thought-through demand reduction policy. Consultation on details is not expected until late 2013. Surely, if we are interested in meeting our carbon budgets and security supply objectives at least cost, this should be the first policy pursued. Why is it taking us so long and why do we not have a more clearly defined strategy? The answer is that, just as the department’s budget is dominated by spending commitments on nuclear waste and decommissioning, its intellectual capacity has also been absorbed with the question of how to ensure there is investment in a new fleet of nuclear power stations. I am not saying that those are not needed but we need to have balance in our policy. We really ought to be doing more on energy efficiency.
Chapter 3 sets out the carbon market mechanism. That at least provides an important stepping stone towards the valuation of services that reduce our demand for energy but there is no rationale for delaying implementation of this element. The sooner we start to work on how to manage our energy the better. Only then will we be able to ensure that we are building the capacity we need, not simply the capacity that we imagine might be needed. My friend in the other place, Alan Whitehead MP, has written extensively and eloquently on this topic and recently suggested that we should use the Bill to introduce a market for decapacity payments as soon as possible. This is an interesting idea worthy of greater exploration.
How we define decapacity payments would obviously need discussion but it could be that they are for those activities which deliver permanent and active demand reduction measures. This could help us to focus particularly on activities which reduce our peak demand. At the moment, we have a very difficult demand profile with big spikes in demand on winter evenings. Our supply system has to have enough capacity to catch these peaks, which means we always have a large surplus in capacity during the remainder of the year. This oversupply is currently at very high levels. When Ofgem warns that our supply capacity could fall to 4% above demand, it is quoting capacity in excess of peak, not demand in the intervening periods. If we can reduce the peak, we will not need to build as much replacement capacity to maintain that margin of error, saving everyone money.
The sorts of activities that could qualify for a decapacity payment include those which currently fall between the stools of existing energy efficiency policy. One example I have seen at first hand is voltage optimisation, which can be very effective. I visited Chaucer Technology School in Canterbury and saw how it had reduced its electricity bills by 13% through voltage optimisation, saving £8,000 per year. It is going to invest that money, alongside money saved by fitting a biomass boiler, in LED lighting. That is another technology that could be supported as a decapacity measure.
That investment by the school was facilitated by the Salix finance facility, a very successful policy introduced under Labour by the Carbon Trust. It provides zero-interest loans to public-sector buildings to invest in energy efficiency and demand reduction. To date, it has funded over 9,000 projects, valued at £194 million, which over the lifetime of the projects will reduce emissions by 4.5 million tonnes. The initiatives currently facilitated by Salix must be encouraged and incentivised across the country. It is quite notable that the Government’s energy efficiency strategy barely mentions Salix. It is there but only in an annex. Is the Minister aware of the work of Salix? Could she outline the department’s plans for it in the future?
To return to decapacity, as mentioned before, a number of technologies could be very usefully brought forward by such a mechanism. I talked about LED lighting and voltage optimisation. There is also smart metering, and efficient pumps and motors. These make up a big portion of our non-domestic electricity demand and should be incentivised more.
My noble friend Lord Whitty mentioned the use of tariffs. It is definitely true that with the advent of smart meters we should be able to have a much more flexible demand profile, moving our demand away from peak times and increasing the efficiency of our system. Those time-of-use tariffs could, when aggregated, have a very big impact on our system and should be supported as a priority. Could the Minister comment on the idea of the early introduction of a decapacity incentive mechanism in the context of Chapter 3 of the Bill? This could receive widespread support and we would encourage DECC to deploy more resources in this area.
In speaking about energy efficiency, it is usual to focus on the end use of energy and this evening noble Lords have, indeed, talked much about the numerous policies that exist in that area. I would like to focus a little on upstream energy efficiency which is an overlooked area of policy which we should take seriously. The efficiency with which we convert primary fuels—that is coal, oil and gas—into electricity is very important in defining how efficient we are in carbon terms across the whole system. Electricity generation is still the biggest source of CO2 and how we make it is therefore important. During the last dash for gas in the late 80s and 90s, we made significant reductions in our emissions because we replaced ageing coal plant with new, cleaner, gas plant. Not only was the fuel cleaner but the stations burning it were more thermally efficient. This is a very important point and there has been no progress in policy terms on it since then. So we find, in 2011, that the thermal efficiency of our gas plant is close to 50%, whereas our coal fired stations are only 35.7% efficient. In 2011 we relied on, and in 2012 are still relying on, these inefficient stations more than on gas because of high gas prices while coal stations are still operating at high load factors. Much of our old coal will come off the system but 20 gigawatts of old coal capacity will remain on the system, much of it built in the 1960s. We lack any direct strategy that addresses the energy efficiency of upstream electricity generation. The one policy that did exist—the IPPC directive—was lost when there was deregulation in favour of the EU Emissions Trading Scheme. That and other efforts to price carbon have so far, sadly, failed to provide a strong incentive. Will the Minister give assurances that the Government will include upstream energy efficiency in power generation? Can we expect measures to be brought forward that will help to improve the situation now and in the future?
I have spoken for some time without mentioning the policy which the Government consider to be the game-changer in respect of energy efficiency: the Green Deal. The noble Lord, Lord Teverson, mentioned it and I am grateful to my noble friend Lord Whitty for introducing it to the debate. I am not fully persuaded that this is the right policy to unlock these savings. I have worked in this area for a number of years and I have not noticed a huge demand from people asking for new loan structures to enable them to invest in energy efficiency. My fear is that, given that the interest rates are going to be relatively high and there will be penalties for early repayment, this might not deliver as we would hope. I hope I am wrong and time will, of course, tell. I agree with the comments of noble Lords that it needs a much more concerted effort to communicate this policy to members of the public and businesses. I am told that very many businesses simply assume that it does not apply to them. We have a very big education job ahead of us if this policy is going to succeed. I urge the Government not to become overly confident or complacent in expecting that the policy will deliver. It is entirely based on the desire of people to take it up, so we should not be using its existence as a reason not to look at other policies in this area. I noted a statement in the consultation document on demand reduction that there was a strong case that we do not need any more measures in the domestic sector because of the presence of this policy. I would urge caution, because it certainly has not delivered yet and we should still be looking at broad-based measures for demand reduction across all sectors.
I am running out of time, but I will finish by saying that we do not yet have an energy efficiency strategy: we have a very nice document, a lovely MACC curve and lots of fine words about the potential but, echoing the words of the noble Lord, Lord Teverson, we still do not know how the Government are going to get on and deliver. I urge them to do so.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma)
My Lords, I very much welcome the opportunity to focus on this particularly important aspect of energy and climate change policy. I am grateful to my noble friend Lord Teverson for raising this debate at a very opportune time. He raised a number of points which I, too, will touch on and feel are worthy of repetition. Of course, I will try to answer as many questions as I can. If there are any I cannot answer tonight, I will write to noble Lords and place copies in the Library.
Last month, the Government not only published the energy efficiency strategy but introduced the Energy Bill, which includes electricity market reform, a landmark change that will attract the investment we need to replace our ageing energy infrastructure with a more diverse and low carbon energy mix. As noble Lords have mentioned, we have also launched a consultation on how we can further encourage electricity demand reduction. Today, we have provided the details of how the CRC energy efficiency scheme will be simplified. We are making great strides in this area. I am disappointed that the noble Baroness, Lady Worthington, thinks that the Government are not doing enough. When the Bill arrives in this House, we will have plenty of time to discuss many of these issues.
All noble Lords have made some extremely important and considered remarks, even if I do not agree with them all. However, I agree with the noble Lord, Lord Whitty, that an extremely important subject such as this, which affects everyone, needs to have a narrative that is absolutely right and understandable. Perhaps we need to communicate our messages a little more clearly.
Although debated since the 1970s, there has not been a constant focus on increasing the UK’s energy efficiency. To address this, the Government created the Energy Efficiency Deployment Office in DECC in February this year. The energy efficiency strategy is EEDO’s first significant project and it provides the platform for energy efficiency policy for the coming decades. The strategy identifies the energy efficiency potential in the UK economy, the overarching barriers to achieving that potential and the actions that we are already taking to address those barriers.
As my noble friend mentioned, we could be saving 196 terawatt hours, which is equivalent to 22 power stations, through socially cost-effective investment in energy efficiency. Greater energy efficiency can be, and is, an extremely positive force in our economy. The energy efficiency sector in the UK already accounts for around 136,000 jobs in the UK and, during 2010-11, created sales of £17.6 billion. These sales have grown more than 4% per year since 2007-08 and are due to grow by 5% per year between 2010-11 and 2014-15. Nevertheless, energy efficiency has significant further potential in the UK. With the right market we could unlock further investment in energy efficiency, helping to generate further economic growth and jobs. Our analysis suggests that the Green Deal and the energy company obligation alone could support up to 60,000 jobs across the UK in 2015.
Investing in energy efficiency measures often requires local labour, can increase the productivity of the economy by releasing resources and, over the long term, can stimulate innovation. Developing a mature, knowledgeable energy efficiency market will also open up significant further export opportunities for the UK as the global effort to combat climate change ramps up. There are also savings to be made by householders and businesses. Research has suggested that, if no energy efficiency gains had been made since 1970, current energy use would be almost double its current levels, adding about £1,000 to the average domestic energy bill.
Improved energy efficiency also has obvious wider benefits, including reducing our greenhouse gas emissions and improving our security of supply. If we can reduce our demand for energy, we can achieve a cleaner, more sustainable energy system that is less reliant on primary fuel imports. Be in no doubt, energy efficiency needs to be a key part of our energy policy mix if we are to achieve our target of an 80% reduction in greenhouse gas emissions by 2050.
Achieving these multiple benefits is not easy, and the energy efficiency strategy makes clear the barriers that we face. We need to stimulate the market, ensure that consumers trust the information provided to them and make energy efficiency salient to those who could benefit from it. Society does not currently value energy efficiency as it could.
The Government are already taking significant steps to address these barriers and deliver the necessary culture shift. We are supporting consumers to cut energy waste and reduce bills by providing help to pay for and install energy efficiency measures. Our Green Deal and smart meters policies will help households make further efficiency improvements and put them back in control of their energy use.
The Green Deal has been designed to help energy bill payers keep their homes warm while saving money. It will help finance the installation of a broad range of improvements, including insulation, double glazing, microgeneration, lighting and heating. It will pave the way for one of the biggest retrofit programmes in our history. The first Green Deals will be available to consumers from the end of January, and the energy company obligation will provide extra help for those most in need and for properties that are harder to treat. Smart meters will give consumers near-real-time information on their energy consumption helping them to control and manage their energy use and make savings. Smart meters are already available, and energy suppliers expect to install significant numbers of smart meters before the start of the mass rollout at the end of 2014.
To address energy efficiency in the wider economy, we are also providing access to finance through the recently launched UK Green Investment Bank. This includes two specialist non-domestic energy efficiency funds, worth £50 million each. With the required match-funding from the private sector, this will create up to £200 million of investment to be spent by April 2015.
On 29 November, the Government also published the electricity demand reduction consultation. This sets out ambitious, economy-wide proposals to reduce electricity demand, building on the long-term strategic framework of the energy efficiency strategy. Taking measures to cut electricity use can be much cheaper than building new generation. Our analysis suggests that there is potential to go further than existing policies, so the consultation seeks views on different ways in which this might be done using market-wide financial measures or targeted financial incentives, such as scrappage schemes.
As a package of measures, our energy efficiency policies should deliver savings of 163 terawatt hours in 2020. This is an energy saving equivalent to 19 power stations. Our strategy is to achieve every bit of this potential, but also to look for more. It is innovative ideas such as the Green Deal, the Green Investment Bank and electricity demand reduction that will help make us world leaders on improving energy efficiency. Our efforts to achieve more will come in steps, and we cannot yet anticipate everything we will achieve cost-effectively, but the consultation is there on EDR, and we should debate what can be achieved. Next spring, we will consult on audits for bigger business and seek to understand the appetite for making audits have real impact.
I shall try to respond to some of the points that noble Lords have raised. My noble friend Lord Teverson asked about the transition period. Energy suppliers will continue to make available insulation measures as they continue to undertake mitigation action in the first few months of 2013. The Green Deal offers will begin to come online in January next year.
My noble friend also asked about a comparison with the digital TV switchover. We have sought to learn from the switchover but this is not like for like—the smart meter rollout will be different; it is also is led by energy suppliers and so it cannot be on a region-to-region basis. We are confident that the industry knows that it has to do a lot of work to ensure that information is available to consumers.
My noble friend also asked about our handling of the energy efficiency directive. As well as leading on the implementation of the energy efficiency strategy, EEDO will provide the central co-ordination point for the implementation of EU energy efficiency directives. Departments responsible for policies affected by each article will feed into EEDO, which will provide support and ensure consistency.
I am fast running out of time so I think it would be appropriate if I do my concluding remarks and then write to noble Lords. It would be unfair to skip over responses very quickly without giving some detail. I thank noble Lords for their important contributions and I look forward to future debates. I hope that noble Lords will support the Government in their endeavours to strengthen the energy efficiency market in the UK. Our strategy is an important document that sets out a long-term challenge for the UK but it is important also that it sets out an opportunity. It is clear that greater energy efficiency must be at the centre of UK energy policy in the coming decades. This country has an excellent record of using its resources effectively, and energy should be no different. In achieving an energy efficient future we can increase energy affordability, reduce carbon emissions and deliver a more secure energy system.
Crime and Courts Bill [HL]
(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
(c) which gives an opportunity to a victim or victims to talk about, or by other means express experience of, the offending and its impact.”
Baroness Linklater of Butterstone
My Lords, I have retabled my amendment following discussion in Committee with an amended wording that is possibly clearer and specific to the restorative process. This is all about giving the victim the opportunity to talk about the whole experience of the offence they have suffered or to express their feelings in some other way which is better or easier for them. It is nothing to do with compensation or financial need, but specifically the personal, human dimensions of the event. It could also involve others who have been directly or indirectly involved in the event or events or possibly in supporting the victim, which could involve family or other relevant people close to the victim.
This puts the victim at the centre of the process, always remembering, of course, that the purpose of RJ is for both victim and offender. The dialogue and engagement of both parties is at the heart of the restorative process—for each to hear the other articulating in whatever way they choose just what the experience was like for them, what they felt then and feel now, what it meant in order to make sense of the event, to come to terms with it all and to achieve some sort of closure. The chance to hear the offender apologise for what has occurred can mean a great deal to the victim, as can the opportunity to describe the impact of the event on his or her life. It can also be very helpful—not to say a revelation—to the perpetrator, as well as making him understand the results of his actions, of which he is often entirely oblivious.
Lord Rosser
My Lords, briefly, we await with interest the Government’s response. Certainly, the amendment would appear to fill in a gap in this part of the Bill, since one’s understanding of restorative justice was that it was at least as important, if not more important, for the victim as it was for the offender. Yet while the relevant clause provides for participating,
“in an activity … where the participants consist of … the offender and one or more of the victims”,
it then goes on to say,
“which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims”.
It would appear as though the view in this part of the Bill is that the offender’s needs and awareness are regarded as rather more important than those of the victim or victims. I conclude by saying that my understanding of restorative justice is that it is there for the benefit of the victims at least as much as, if not more than, that of offenders.
Lord Ahmad of Wimbledon
My Lords, I welcome the enthusiasm and support for restorative justice from across the House. Indeed, at the recommital stage of the Bill my noble friend Lady Linklater moved an amendment in relation to pre-sentence restorative justice. That amendment added an explicit reference to restorative justice meeting the needs of the victim.
Her Majesty’s Government entirely agree that RJ, when used appropriately, can be an extremely positive experience for victims. For example, our own research has shown that 85% of victims participating in direct RJ conferencing with their offenders were satisfied. We therefore gave an undertaking to consider the amendment in advance of Report. I assure the House that we are fully supportive of the intention behind the amendment. We consider that the phrase,
“meet the needs of the victim”,
needs more explicitly to reflect the benefits provided by restorative justice. Victims may have many needs as a result of a crime, and we should be clear about which of them RJ may meet.
I am sure that noble Lords will agree that one of the most important benefits of RJ is to give victims a voice in the criminal justice system. The amendment therefore seeks to reflect this. It puts an equal emphasis on victims and offenders in defining RJ requirements by focusing on victims’ need to have their voice heard. It also seeks to cover the different ways in which victims might want to express themselves. The phrase, “talk about” seems to us a direct and simple way of describing what might happen in the majority of cases—victims talking at a face-to-face meeting or mediation about the impact of the offending. The words,
“or by other means express experience of”,
is intended to cover other ways of sharing experience, thoughts and feelings.
In short, we appreciate that some victims may be too traumatised, or otherwise unable or unwilling, to talk about their experience. Instead, they may want to express their feelings in writing or drawing, or through other means. We therefore believe that the amendment will strengthen the role of victims in the restorative justice process. In the light of this, the Government propose to accept the amendment.
“Part 2AProvision for female offenders7A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.
(2) Provision under sub-paragraph (1) shall include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour in groups consisting only of women.”
Baroness Linklater of Butterstone
My Lords, I shall now speak about provision for women offenders. I echo the Minister’s remarks in relation to RJ, which he said gives victims a voice. What I hope to gain from this amendment is to ensure that the Bill gives women a voice. We are returning to the issue of specific provision for women who offend because of the recognition around this Chamber and in the country at large of the importance of this issue and the need, above all, to give statutory underpinning to the policies and plans to meet women’s needs.
When we discussed this issue in Committee, the Minister affirmed his shared understanding that women are different and need a different response from our criminal justice system. He reminded us that the Government have appointed a new women’s champion in the MoJ, Helen Grant MP, which is a positive and encouraging move. It is also clear that a specific women’s strategy will be developed. It is in this context that we have agreed on Amendment 113GF, whereby participation in community-based programmes will be provided,
“with the particular needs of women in mind”.
We hope that this new focus will ensure that this is the case in community-based provision, too, and women will not be relegated to provision designed for men. There is a clear understanding at the moment that the appointment of the new Minister, whom we greatly welcome, will give a focus on and impetus to the development of a new strategy for women. There is a difference between a strategy and having a statutory place in the MoJ’s scheme of things, and that is what we seek.
I do not think that the Minister needs reminding that these women not only have a different offending profile, but that they tend to serve very short sentences, with 58% of those in custody serving six months or less, 81% of whom have committed non-violent crimes. That is a very high proportion. However, the personal trauma that they have suffered includes more than half having suffered domestic violence and a third having been sexually abused. This, in turn, means that their needs are particularly acute and sensitive, which is reflected in the fact that 31% of all incidents of self-harm in prison are by women, although they represent only 5% of the prison population.
A recent YouGov poll commissioned by the Prison Reform Trust showed strong public support for public health measures to help tackle their offending, in particular drug treatment, help with alcohol misuse and mental health care. It found support from more than two-thirds of those polled.
It follows that it is not only these women who suffer the trauma but also their children, for whom they are the principal and often the sole carers. It is estimated that each year more than 17,700 children are separated from their mothers by imprisonment. The report on such children a few years ago showed how the loss of a parent is experienced as a bereavement. This is why it is vital that, in all but the most extreme cases, community-based sentences are a necessity if the ripples of damage are not to be extended to the next generation while the current needs of these mothers are being met. We owe this to women and children alike. We should also be aware of the implications these figures have for our future society.
We know that the Government have provided £3.7 million to probation trusts for 31 women’s centres, which is extremely welcome. We also know that NOMS funding for women’s centres is guaranteed only until March next year. I look forward to the Government’s response to this and to seeing what assurances they can give us. The Government’s strategy, with the added focus that Helen Grant will bring, will be very important to this provision’s sustainability. It absolutely needs statutory protection to ensure continuity and maintain the necessary priority and profile among all the competing demands on the public purse.
There are worrying plans to commission justice services on a payment by results basis, which immediately puts much of women’s community provision at risk. This is because small voluntary organisations simply will not be able to compete as providers as they currently do. Along with the probation trusts, they may well find themselves competing with large private sector organisations, with the inevitable loss of contracts. This would be a catastrophe and further illustrates why women must have their statutory place as part of our criminal justice provision, which this Bill represents.
It will be some time before another such Bill will come along, and women’s needs are too pressing and important in our public responsibilities to be left to an MoJ strategy alone. Following a visit to Holloway in November, the Secretary of State for Justice Chris Grayling said:
“I saw at first hand the very different challenge we face with women offenders”.—[Official Report, Commons, 13/11/12; col. 163.]
I hope that, with this insight into the needs of women who offend, he and Helen Grant, along with the Minister, will recognise the desirability and necessity of women having their statutory place in this Bill. I beg to move.
Amendment 113GF (to Amendment 113GE)
Baroness Hamwee
Baroness Hamwee
My Lords, I would like to explain this amendment to noble Lords who might think it is a little odd. My noble friend and I discussed the amendment that she has just moved and I suggested the wording that your Lordships will see on the Marshalled List, which my noble friend thought was a good idea. At that point the first amendment would have been moved by the noble Lord, Lord Ramsbotham, so we sort of knew what we were doing. Other things moved around us.
The reason for the alternative wording was that it seemed to us that to provide something wider than,
“groups consisting only of women”,
would mean that what was being called for was less prescriptive as to the means, and potentially more affordable, which we hoped would appeal to the Government. However, what is particularly important is that it would widen what is known in the terminology as “the ask”.
I will briefly reinforce what my noble friend said about the children of women offenders who are given custodial sentences, and the importance of looking at the issue in the most hard-hearted way. Separating children from their mothers puts a strain on the whole family, if there are other members of the family, and undoubtedly does damage to the children. The advancing work on the neurological impact on children of being separated from their mother is becoming better known. In hard cash terms as well as in humanitarian terms, trying to reduce to the absolute minimum the number of times this happens can only be to the good of society and the public purse.
Lord Hylton
My Lords, I venture to intervene in this debate only with trepidation and because in the past I have spoken about the position of women in the criminal justice system. The two noble Baronesses who spoke were absolutely right to emphasise the question of children who are separated from their mothers by custodial sentences. I hope very much that the Government will do their best—I hope that they are listening—to begin implementing the recommendations of the report of the noble Baroness, Lady Corston. Among the things that she asked for were centres for women who are at risk of offending, who have already offended or possibly who need rehabilitation post-offending, post-sentence or during sentence. It would be a great step forward if we could have at least one such centre somewhere in England. Will the Government take this seriously and consider having one experimental centre to see what good results it can achieve? I hope that the Government have also taken on board all the other arguments in favour of the amendment.
The Earl of Listowel
My Lords, as treasurer of the Parliamentary Group for Children, I feel particularly concerned about this Question. I am also particularly grateful for, and pleased to learn about, the investment that the Government are making in these centres—prisons without walls, as the noble Baroness, Lady Corston, called them in her report. I feel, with her, that if we are going to make a difference in this area, we need to put the position of women on a statutory basis. It may be helpful if I quote some statistics about women and families from the Corston report. It reveals that 34% of women in prison are lone parents. Around two-thirds of women were living with their children before they came to prison. One-third had a child under five. Only 9% of children whose mothers are in prison are cared for by their fathers. Around 18,000 children each year are separated from their mothers by imprisonment. Only 5% of women prisoners’ children remain in their home when their mother has been sentenced to custody. As many as 25% are cared for by grandmothers, 29% by other family members or friends, and 12% are in care, with foster parents or adopted.
The noble Baroness, Lady Corston, goes on to say:
“One of the most alarming statistics that I have seen reported appears in the Revolving Doors Agency’s survey in which 1,400 women serving their first sentence in Holloway were interviewed. 42 women had no idea who was looking after their children. Quite apart from the dreadful possibility that these children might not be in a safe environment, this must cause mothers great distress and have deleterious consequences for their mental health”.
I am very grateful to the previous Government for their response to the Corston report and for the current Government’s work in this area, but I hope the Minister responds to the request for a statutory basis for women in the probation area.
Lord Rosser
My Lords, in her report a few years ago my noble friend Lady Corston drew attention to the reality that existing provisions, both in prison and in the community, are largely geared to male offenders and the needs of male offenders. The Corston report called for separate services, locally available, geared to the needs of women offenders in order to reduce as far as possible the disruption to family life and the impact on children The needs of their children and families have a considerable bearing on the ability of women offenders to attend programmes and avoid breaches of the order, and on the effectiveness of those programmes in having a positive impact on reducing reoffending. My noble friend’s report also drew attention to the number of female offenders in prison who had been, or were, the victims of domestic violence and sexual abuse, which are not normally issues that have to be taken into account by providers of services, or addressed by the skills they have to provide for male offenders.
A recent joint inspection report on alternatives to custody for women offenders highlighted the lack of women-specific provision for unpaid work and offending behaviour programmes, though it also said that women-only provision where available was often very successful. Investment in credible and appropriate alternatives to custody for women is essential. Programmes should be specifically designed for female offenders and address their needs. As well as reducing reoffending, community sentences designed specifically for women should help reduce the rate of breach as they should be capable of better fitting with women’s needs and responsibilities.
Schedule 16, dealing non-custodially with offenders, actually makes no specific provision or reference to women. The amendments seek to address these concerns by ensuring that probation trusts are required to make appropriate provision for the delivery of services to female offenders that will include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour with the particular needs of women in mind. I hope the Minister will accept this group of amendments and recognise the significant gap created by the absence of specially tailored arrangements for dealing with women offenders, most of whom, as has already been said, have committed non-violent offences, and whose sentences if they end up in prison can lead to the break-up of families, with potentially disastrous consequences for all concerned, not least the children who can end up having to go into care.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we are fully aware of the point that the noble Lord, Lord Rosser, made in closing. One of the special factors about women in the criminal justice system and in prison is that the impact of their incarceration is an impact not only on themselves but also on their children and their families. For that reason, the Government have taken the Corston report of 2007 very much as the template of their approach to women. I have benefited from having a number of conversations with the noble Baroness, Lady Corston, over the past couple of years about the implementation and carrying forward of the report. I know that my colleague Helen Grant has also met the noble Baroness to discuss these issues.
It is interesting to note that the Government accepted 40 out of the 43 recommendations in the Corston report and made a range of commitments across government departments to take them forward. There have been real improvements in the past five years under successive Governments, including significant investment in women’s community centres to address holistically the underlying causes of women’s offending such as drug and alcohol addiction, mental health issues and histories of abuse.
The female prison estate was reduced by 400 places with the closure last year of HM Prison Morton Hall. We have about 4,000 women still in prison. However, the cross-government strategy includes: piloting and, subject to business case approval, rolling out liaison and diversion services in police custody and the courts by 2014; the piloting of drug recovery wings for drug and alcohol-misusing prisoners at three women’s prisons—New Hall, Askham Grange and Styal—and the development of intensive treatment-based alternatives to custody for offenders with drug or mental health problems, including four women-only services at Wirral, Bristol, Birmingham and Tyneside. In addition, there is the implementation of particular provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with regard to remand and breach, which are expected to reduce the number of women in custody, and the delivery of the Home Office-led Call to End Violence Against Women and Girls, which will address the high levels of abuse experienced by female offenders. The commissioning of women’s services, including women’s community services, has been devolved to local probation trusts to ensure that provision is integrated into local services. This year’s £3.78 million of funding is now embedded in NOMS’ community budget baselines to allow for continued support of provision for women.
As I indicated in Committee when we last considered the issue, I fully agree with noble Lords that it is important that the criminal justice system is properly responsive to the needs of female offenders. I share the view that it is also essential that we take account of women’s experiences and needs. That is why I am pleased that the National Offender Management Service is still rolling out the Women Awareness Staff Programme, currently with a focus on training the trainers, so that they can provide support to staff and voluntary and community sector partners working with female offenders. This covers issues such as self-harm, relationships and abuse, and is complementary to the Women’s Aid best practice framework, Supporting Women Offenders Who Have Experienced Domestic and Sexual Violence.
I am also pleased to confirm that the National Offender Management Service has been working to develop the evidence base around what works with female offenders. Over the coming year, this work will support the strategic approach to female offenders as set out in the National Offender Management Service’s Commissioning Intentions discussion document, published in October of this year. All probation trusts are required by the National Offender Management Service’s Commissioning Intentions document to make appropriate provision for women in the community to address factors associated with their reoffending, using third sector and private sector services, where appropriate.
The National Offender Management Service has also published information on the specific needs of women to support the commissioning of relevant offender services for this group as part of the commissioning round for 2012-13. Already probation trusts across the country are coming up with innovative, new approaches to working with women that reflect the local situation. There are many good examples of women-only provision in the community. For example, Nelson Probation Office in Lancashire has a women-only reporting day. In Durham in the Tees Valley, the trust provides women-only reporting centres in each of the six local delivery units, with community based support and childcare provision located at these points. In Derby, there is a women-specific programme addressing violent behaviour.
Baroness Hamwee
My Lords, I do not think—at any rate, in my case—it is about looking a gift horse in the mouth. Rather, we are only looking at it in the mouth long enough to get it into the stable and close the door. However, I hear what my noble friend says. He stressed flexibility; he was stressing it before he even got to use the term. It has been clear to me for a long time that my noble friend does not use empty words on this subject and that his heart really is in this; I welcome that. To the extent that he can ever see amendments from these Benches as intended to be helpful, this one certainly was.
I, too, choose to look at the delay in the publication in a positive light, given the introduction that he gave it. I had intended to be helpful with this amendment; I will not accuse my noble friend of looking the gift horse of the amendment in the mouth, but I will beg leave to withdraw it.
Lord McNally
Lord McNally
My Lords, this group consists of three government amendments that, if not technical amendments, are certainly not controversial. Amendment 114 is intended to remove uncommenced elements of Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and make a minor consequential amendment to the Criminal Justice Act 2003.
I know that it might seem odd for this House to be considering again a provision that was debated so recently both here and in the other place, but it is right for us to do so. This amendment repeals provisions in the LASPO Act that, if brought into force, would mean that the courts could consider a case where an offender has breached a community order without reasonable excuse and allow the order to continue unchanged.
Having reconsidered their position, the Government do not think that it is appropriate for offenders to breach their community order and not face any sanction at all. We must ensure that both offenders and the public have confidence in community orders and take them seriously. Offenders will not take their order seriously if breaching does not have consequences. If an offender breaches a community order, we believe that a court should be able to take one of the three following actions: make the order more onerous; revoke the order and resentence for the original offence; or impose a fine. The last option allows the order to remain unchanged, while at the same time imposing a penalty for the breach. The courts did not have this power until it was included in the LASPO Act 2012. I am sure noble Lords will be pleased to know that it was brought into force on 3 December.
The Government believe that this revised framework provides the courts with the right options for dealing with failures to comply with community orders. It will still give the courts different options to tailor responses to breaches to individual offenders. However, it will also ensure there is a sanction of some sort for any offender who is found to have breached. Accordingly, on further consideration, we now believe that there is no good case for allowing offenders who fail to comply with court orders without a reasonable excuse to receive no penalty.
Amendment 114 also corrects a technical error in Section 150 of the Criminal Justice Act 2003. This section was amended by the Legal Aid, Sentencing and Punishment of Offenders Act, which prevents a court from making a community sentence where a mandatory minimum sentence for the new aggravated knife possession offences in the LASPO Act apply. The LASPO change inadvertently prevents the court from giving a 16 or 17 year-old a youth rehabilitation order, which is the youth equivalent of the adult community order for these offences. Amendment 114 corrects this technical error so that the new provisions work as they were originally intended to. Without this amendment, were the court to decide to set aside the mandatory minimum, it would not be able to give a youth rehabilitation order and would therefore have no option but to give a lesser penalty such as a referral order or a fine.
Amendments 113H and 113J are of a technical nature. The intention is to allow for the transfer of community orders and suspended sentences to Northern Ireland, where an order containing location monitoring under the new electronic monitoring requirement is made in England or Wales but the offender lives in, or is planning to move to, Northern Ireland. It is already possible to transfer existing orders to Northern Ireland, so this provision merely extends that capability to the new location monitoring provision that we are introducing in the Bill. Although location monitoring is not currently available in Northern Ireland under existing contractual arrangements, this will be addressed in the retendering of the contract in 2013. This provision will therefore enable appropriate cases to be transferred when the operational arrangements are in place in Northern Ireland. The transfer will be possible only where the court is satisfied that the appropriate arrangements are in place. This means that the tag will be capable of being fitted and the offender’s location will then be able to be monitored. If the court is not satisfied that the necessary tracking technology is available, the court in England and Wales will not be able to transfer the order.
Noble Lords will have noticed that the provision covers Northern Ireland but not Scotland. This is because at the moment there is no statutory provision for the imposition of tracking as a requirement in Scotland. If and when the time comes that Scottish courts can impose location monitoring as a requirement, we will bring forward legislation enabling the transfer of orders, including such requirements, from England and Wales to the Scottish jurisdiction. I beg to move.
Lord Goldsmith
My Lords, I rise slightly diffidently to ask a question about Amendment 114. I am not sure that I fully understood what the Minister said, though I am sure it is my fault. At one point I thought he was saying that the effect of Amendment 114 was to take out from LASPO an obligation to deal with breaches and insert instead a power to deal with breaches and give the court the opportunity to make its own mind up, but then I thought I understood him to be saying the opposite, that the purpose of this amendment is to ensure that where there is a breach of a community order the court is obliged to impose some penalty. I would be grateful if he would clarify that.
Perhaps the Minister could also clarify how it comes about that we are asked to amend LASPO quite so quickly and whether or not the passages that would be amended—indeed, removed—by this amendment were debated. I have no recollection as to whether or not they were, but it would be good to know if something that was debated, for example, in this House is now being removed in this way at 9.45 pm on the penultimate day of Report.
Lord McNally
My Lords, the noble and learned Lord is long enough in the tooth to remember other times when Governments have taken a second look at relatively recent legislation.
To clarify, Amendment 114 will remove uncommenced elements of Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The provision being removed would have empowered courts dealing with a breach of a community order to allow the order to continue unchanged. Not commencing the provision means that the court must make the order more onerous, resentence for the original offence or fine the offender for breach. In lay man’s language—which is the only language I can use, because I am a lay man in this—in the Government’s opinion, the LASPO Act left an option that they now wish to change, which is that breaches of the order could have gone unpunished. We do not think that that is a sensible way of getting people to take the orders seriously and therefore this amendment empowers the courts to make the order more onerous, resentence for the original offence or fine the offender for breach.
Lord McNally
“(4) pIn paragraph 3(1) of Schedule 9 and paragraph 6(1) of Schedule 13 (pre-conditions for imposing requirements where offender will be living in Northern Ireland) before the “and” at the end of paragraph (a) insert—
“(aa) in the case of an order imposing an electronic monitoring requirement within section 215(1)(b)—(i) that any necessary provision can be made in the offender’s case under arrangements that exist for persons resident in that locality, and(ii) that arrangements are generally operational throughout Northern Ireland (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored,”.(5) In paragraphs 3(3)(b) and (4) and 13(b) of Schedule 9 and paragraph 6(3)(b) and (4) of Schedule 13 (references to the pre-conditions) for “and (b)” substitute “to (b)”.
(6) In paragraph 4(3)(d) of Schedule 9 and paragraph 9(3)(d) of Schedule 13 (disapplication of section 218(4)) for “subsection (4)” substitute “subsections (4) and (9)”.
(7) In paragraph 17 of Schedule 13 (reference to the pre-conditions) for “and (b)”, in the second place, substitute “to (b)”.”
“Part 4ACommunity orders: further provisionBreaches of community orders21A (1) Omit paragraph (a) in each of subsections (2) and (5) of section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (amendments which would have turned duties to deal with breaches into powers to do so).
(2) In paragraph 9(6) of Schedule 8 to the Criminal Justice Act 2003 (which refers to provision that would have been made by those amendments) for “have the power” substitute “be required”.
Community order not to be made in case of knife etc offence attracting minimum sentence21B (1) In section 150 of the Criminal Justice Act 2003 (no power to make community order or youth rehabilitation order where sentence fixed by law)—
(a) the existing provision becomes subsection (1) of that section, and(b) after that subsection insert—“(2) The power to make a community order is not exercisable in respect of an offence for which the sentence—
(a) falls to be imposed under section 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for offence of threatening with offensive weapon in public), or(b) falls to be imposed under section 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for offence of threatening with article with blade or point in public or on school premises or with offensive weapon on school premises).”(2) In consequence of sub-paragraph (1), in Schedule 26 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 omit paragraph 19 (which would have made provision corresponding to the new section 150(2) of the 2003 Act but also preventing the making of youth rehabilitation orders).”
or information which is held with information so held;”
Lord Rosser
“Part 8Reorganisation of the National Probation Service1 The Offender Management Act 2007 is amended as follows.
2 After section 15 insert—
“15A Power to reorganise the National Probation Service
(1) Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations.
(2) Regulations under subsection (1) shall be subject to the affirmative resolution procedure of each House of Parliament.””
Lord Rosser
This amendment is similar to one that I tabled in Committee in order to give the Minister the opportunity to say more about the Government’s intentions for the future of the probation service. The amendment states that:
“Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations”.
It adds that those regulations,
“shall be subject to the affirmative resolution procedure of each House of Parliament”.
Bearing in mind that in this Bill we are asked to agree to significant changes in community sentencing, which will be dependent on an effective and properly resourced probation service, the Government still cannot tell us what their intentions are for the probation service. It therefore does not seem unreasonable to agree to this amendment, which will enable both Houses to satisfy themselves that whatever changes the Government want to make to our probation service, they would not be in conflict with their objectives and changes on community sentencing contained in the Bill.
Lord McNally
My Lords, I am not sure I shall be able to help the noble Lord, Lord Rosser; he asks lots of questions, most of which do not have a great deal to do with the Bill but have a lot to do with the Government’s declared intention to reform the probation service. We have certainly made no secret of that; indeed, he will be familiar with our consultation paper, Punishment and Reform: Effective Probation Services. He will be aware that this was the first step in determining our approach to how reform is delivered. Further consideration is under way to determine how best to meet the requirements of a probation service that delivers rehabilitation outcomes. We are in the process of carefully considering the way forward and will announce further details of our plans shortly. As I indicated previously, we will be keen to engage with probation staff, representative groups and all those who can make a contribution to the success of this important area of work.
It is interesting—I think I have explained this before to the noble Lord—that the reason why the powers to do all this are not in this or any future Bill is because they are within the powers of the Offender Management Act 2007. During the passage of that Act, there was a debate on the merits of parliamentary scrutiny when establishing, amending and dissolving probation trusts. In the Bill as originally published, no parliamentary procedure applied to the power in Clause 5(1) to establish, alter the name or purpose of, or dissolve a probation trust. The Delegated Powers and Regulatory Reform Committee noted that precedents existed for that, but felt that it lacked sufficient information about how trusts were to be established to make a recommendation about its appropriateness in this context. The committee therefore drew the matter to the attention of the House. In light of the debates on this subject, the previous Administration accepted on the floor of the House that this important power should be subject to parliamentary procedure. The noble and learned Baroness, Lady Scotland of Asthal, asserted that the affirmative procedure would be excessive but tabled a government amendment introducing a negative procedure, which was accepted by this House. On that basis, the Government believe that the parliamentary scrutiny set out in the Offender Management Act 2007 is adequate and we share the view taken by the previous Administration that the affirmative procedure would be excessive. I therefore ask the noble Lord, Lord Rosser, to withdraw his amendment.
Lord Rosser
I thank the Minister for that reply. He started off seeking to suggest that the issue raised in the amendment is not really relevant to this Bill, but it certainly is. The Bill seeks to make significant changes to community sentencing and the delivery of those services will be dependent on an effective and properly resourced probation service. It will not be particularly easy to deliver those changes in relation to community sentencing—of course the changes also cover restorative justice and the role of rehabilitation in reducing reoffending—if at the same time it is the Government’s intention to, metaphorically speaking, turn the probation service upside down. That must clearly be a relevant issue in the Bill. Is the probation service geared, both at the present time and in future, to delivering the objectives and changes that the Government wish to make in community sentencing?
The Minister made reference to the 2007 Act. I appreciate that it is his prerogative if he wishes to express an alternative view, but I do not think that the kind of transfer or apparent transfer of responsibilities away from the probation service that seems to be envisaged at the moment was envisaged at the time of the 2007 Act. Obviously, it is the potential implications of what the Government may be putting forward that have led to this amendment calling for the affirmative procedure to be used. I am sorry that the Minister has not been able to give any assurances at all about the extent to which the existing probation service will continue in being. He has not been able to give any assurances about what responsibilities may or will not be transferred away from the existing probation service. Indeed, put bluntly, he has not really been prepared to say anything at all, which will certainly do nothing to damp down some of the concerns over what the Government’s real intentions are. I appreciate that the Minister is not going to say any more so I have little alternative but to leave it at that. I beg leave to withdraw.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, Amendments 116 and 117 are straightforward technical amendments that simply move Schedule 16 to sit after Schedule 13 and Schedule 17 to sit before Schedule 14. Due to the recommittal process, these schedules are not currently in the correct place when compared to their corresponding clauses. These amendments merely move the schedules into their correct chronological place in the Bill. I beg to move.
Lord Beecham
“Requirement for review
(1) The provisions under section 25 and Schedule 17 shall cease to have effect at the end of a five year period beginning with the day the provisions come into force.
(2) Before the end of the five year period, the Secretary of State must—
(a) provide for a review of these provisions, in consultation with the Director of Public Prosecutions and the Director of the Serious Fraud Office,(b) set out the conclusions of the review, and(c) lay the Report before both Houses of Parliament.”
Lord Beecham
My Lords, knowing the Government’s inveterate enthusiasm for sunset clauses, I am not sufficiently naive to believe that the part of the amendment that deals with the sunset clause will command their agreement. However, the amendment is tabled partly to reflect a potentially dangerous underestimate of how the public might regard this major change in proceedings that we have collectively endorsed, albeit with varying degrees of enthusiasm. The objective of the amendment is to reinforce the need for a review of the operation of the provision which, in fairness, the Minister has previously indicated would take place as part of the normal post-legislative review process. It is particularly important in this case that we carry public support for this change because there is still a danger that there may be a suspicion on the part of the public that large companies are able to—I use the phrase I used in the recommitment debate—buy their way out of a prosecution. That is not the intention and we subscribe to the view that this is a sensible way of dealing with some matters, particularly in the light of the failure of the existing system and organisations to manage successful prosecutions.
The important part of the amendment is that which looks to the review as being a joint exercise with the Director of Public Prosecutions and the director of the SFO, and to the laying of a report before Parliament. There will certainly be a review and I see no difficulty in a report being laid before and discussed by Parliament although, as with other amendments which I shall be moving later, I resile from the position that affirmative resolutions and the like would be required to approve them. It is important that there is an opportunity for proper parliamentary debate to help carry public opinion with us as we move in the novel direction of deferred prosecution agreements. That will apply to other amendments as well as this one. Last week the Minister kindly organised a meeting at which four of us who are in the Chamber tonight, apart from the Ministers, were present and I rather thought he was sensitive to that view. Therefore, I hope he can give the assurance that any discussion of a review would be in consultation with the directors of the two relevant departments.
My noble and learned friend Lord Goldsmith will speak to his amendment. I shall await what he says with interest and comment on it if necessary at the end. I reserve my position on that but I hope the Minister will look with some degree of acceptance on the point about having a proper consultation as part of the review and in discussion in Parliament. I beg to move.
Lord Goldsmith
My Lords, I want to speak to Amendment 116ZA and to refer to Amendment 116E, which stands in my name in this group. Both amendments touch on a similar point, although possibly from different perspectives. I note that my noble friend Lord Beecham and I have perhaps started in slightly different places on this part of the Bill, although maybe we are moving towards a middle position. As the House knows, I am one of those who has been more in the enthusiastic group who support the introduction of deferred prosecution agreements. I believe that they are capable of assisting enormously, in particular cases, in dealing with the problems with which we are faced in crime.
I am sorry that the Government have such a blinkered approach to where these deferred prosecution agreements can assist. What obviously lies behind my Amendment 116E is at least to enable other offences to be added to the list of those that are covered by deferred prosecution agreements without the need for further primary legislation. I have no illusions as to whether the Government will accept this amendment. I am grateful for the meeting to which my noble friend Lord Beecham has already referred and for the attention paid to what was said by a number of us in that meeting. I am also clear that the Government will not move, which is a shame.
Although my amendment deals with offences, the Minister will recall that not only I but others in this Chamber have been concerned also about the ambit of deferred prosecution agreements. It is not strictly speaking the subject of an amendment tonight but the question of reviewing this includes whether it can be reviewed not only to consider the efficacy of the system as it is being introduced but also whether its ambit is appropriate, both in terms of offences and, I repeat, in terms of individuals.
Perhaps I may say this to the noble Lord and, through him, to his ministerial colleagues and their officials: I believe that the Government are making a big mistake in not seeing the advantage of deferred prosecutions in other cases. In this House previously, in Committee, I referred to the benefits that I have seen, particularly in relation to drug offences. If you go to any Crown Court in the country—certainly, this was the case when I sat regularly there and I believe it is likely still to be the case—you will see case after case to do with drugs. It is either a drug offence, or an offence of petty theft, burglary, mugging or something of that sort to get money for drugs. It is hugely damaging to our society but we do not seem to be that good at finding solutions to it. I believe that the carrot and stick approach, which deferred prosecution agreements provide, is one way to deal with that.
I know that the Minister will not respond positively to that today and I know that he will not respond positively to my amendment. However, as my noble friend Lord Beecham said, I hope that there can be a clear commitment to review the operation. I ask the Minister to accept that that commitment should include looking at not just whether the system is working, as it is about to be enacted, but also whether it could be more broadly based in relation to offences or to individuals. If he cannot give that assurance, I, for one, would support—although this was not my position previously—my noble friend Lord Beecham’s amendment as a way of forcing that review.
Lord Marks of Henley-on-Thames
I shall speak briefly to both amendments. While I support in outline the idea that there should be a review, the amendment in the names of the noble Lords, Lord Beecham and Lord Rosser, does not include a provision for an extension of the schedule. It seems to me that a review should be part of a continuing process. I agree very much with the noble and learned Lord, Lord Goldsmith, that there is considerable potential for deferred prosecution agreements. I would expect a review to come out with a recommendation for extension, rather than for limitation, and certainly for continuation of the system unless it turns out to have been a failure, which is not the expectation that I have.
I also agree with the noble and learned Lord in his amendment. I think it is a shame that the range of offences is confined to financial and economic offences. I entirely understand the Government’s position that, at this stage, this is an exercise in putting a toe into the water in unfamiliar territory, and I accept that it is unfamiliar territory. However, the extension of the offences under paragraph 31 of the schedule is subject to the affirmative resolution procedure. For my part, I do not see a huge distinction between adding other financial and economic offences to the list of offences under that procedure and adding the other offences of which we spoke at the meeting and in the debate in Committee. Health and safety and environmental offences have been mentioned, and drug offences were mentioned by the noble and learned Lord, Lord Goldsmith.
We are in the middle of providing for what the Minister has called a rehabilitation revolution. I regard that as a useful phrase and a useful and beneficial concept. It seems to me that deferred prosecution agreements, with their potential for arrangements to be made to encourage future compliant behaviour, can be seen as part of that overall rehabilitation revolution. I know that my noble friend will not accept these amendments tonight, but I urge him to bear in mind, with those in his department in charge of these things, that a wider view can be taken of these agreements.
Lord Ahmad of Wimbledon
My Lords, the amendments in this group relate to issues raised and debated in Committee. I assure the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Goldsmith, that they have been considered in the intervening time. However, as the noble and learned Lord expected, the Government’s position on both issues is unchanged for the reasons that I will reiterate.
Amendment 116ZA seeks to introduce a sunset clause—I am always conscious that the noble Lord, Lord Beecham, often talks of sunset clauses after the sun has set; I am sure there is no direct relevance—for the DPA scheme. The Government still consider that to be unnecessary at present. Let me be clear: our approach to these proposals allows us to test the water, as my noble friend Lord Marks, said, by dipping a toe in to this novel approach. Our proposals have been designed to deal with the particular issue of bringing organisations to justice for economic crime.
However, let me reassure the noble and learned Lord, Lord Goldsmith, that the introduction of the DPA scheme is not a pilot. The Government are committed to DPAs becoming a permanent fixture in the fight against corporate economic and financial crime. For this reason, we do not consider the proposed sunset clause to be appropriate. Additionally, this provision could have a number of prejudicial consequences for any DPA under negotiation, in force or expired. The inclusion of such a clause would introduce uncertainty that might deter prosecutors and organisations entering into a DPA.
Let me assure the noble Lord, Lord Beecham, that the Government will review the operation of the scheme following its introduction, and I am content to reiterate that undertaking here. Pursuant to the Government’s policy on post-legislative scrutiny, of which noble Lords are aware, all new primary legislation is reviewed within five years of Royal Assent. We consider that there is no need to provide a statutory basis for the review of the DPA legislation and consider, on this occasion, that the undertaking we have given on post-legislative scrutiny conducted in the usual way is sufficient.
Amendment 116E, which was tabled by the noble and learned Lord, Lord Goldsmith, broadens the scope of the Secretary of State’s power to specify by order further offences in relation to which DPAs may be entered. As has been stated already, the amendment would extend its scope to the addition of any offence whatever that could be committed by an organisation. We discussed this issue in Committee and have considered with great care the potential to extend the scope of the DPA scheme to cover a broader range of offences. The Government remain of the view that the scope of the scheme should be limited to financial and economic wrongdoing and that it should not be extended beyond this by way of secondary legislation for the following reasons.
First, 77% of the respondents to our consultation agreed that corporate economic crime is the right focus for these proposals, at least initially. Fewer than half of respondents supported the broader availability of DPAs. As we made clear in Committee, the proposals set out in Schedule 17 have been designed as a response to the particular problems of prosecuting organisations alleged to have been involved in financial or economic wrongdoing. Too few organisations are being held to account for economic wrongdoing owing to the particular challenges in investigating and prosecuting the conduct. These challenges are not as acute for other types of corporate offending, including—and I know other noble Lords have mentioned this—environmental offending, where successful prosecutions have been made and where there is already a range of effective alternatives to prosecution. Those responsible for prosecuting offences other than economic and financial crimes have not identified a broader need for DPAs.
The introduction of DPAs, as I have already said, is very much a toe-dipping exercise. We need to ensure that the benefits of DPAs are proven, that there are no unintended consequences and that the right cases are still being prosecuted before considering broadening the scope. The Government are therefore opposed at this stage to removing the restriction on the offences that might be brought within the scope of these proposals. We remain firmly of the view that the current draft of the schedule draws the scope of the DPA scheme appropriately.
However, I would like to reassure the noble and learned Lord, Lord Goldsmith, that the Government will keep this matter under review. If DPAs prove effective in tackling corporate economic crime, and the case is made for extending their availability for other types of offending, then we will reconsider this issue in the future. However, we consider that such a significant change in the scope of the scheme should be made only following appropriate consultation, and by way of primary legislation, with the more rigorous scrutiny that that entails, compared with the affirmative resolution procedure.
I therefore ask noble Lords to wait until these proposals have been fully tested in relation to economic crime in England and Wales, have been shown to be effective and, most importantly, have gained public confidence, before pressing for an extension in their scope. This is an important step forward. It is a new area and therefore it is right that we focus for the time being on economic crime. In light of these points and with the assurance that we will keep the scope of the DPA scheme under review I would be grateful if the noble Lord, Lord Beecham, would agree to withdraw his amendment and the noble and learned Lord, Lord Goldsmith, would agree not to move his amendment.
Lord Beecham
My Lords, I am slightly disappointed by that response. It is not clear to me what form the review will take. Leaving aside the sunset clause—which I virtually left aside in moving the amendment—the amendment really talked about the consultation between the Government and the Director of Public Prosecution and the Director of the SFO and producing a joint report, as it were, for Parliament to discuss. It is not clear to me that that follows from what the Minister has described as the usual post-legislative scrutiny. I would be glad to be corrected if it is intended to bring effectively a joint report to be debated as part of that process.
In relation to the reluctance to envisage bringing forward other areas of law—environmental law was debated at some length at an earlier stage but not necessarily just that area—if we have a five-year review it will be at least six years before primary legislation is likely to be enacted, given that it would have to take its place in the queue, as it were, at that time. That strikes me as rather too long a period to wait, given the general acceptance that this offers a way forward, particularly in the field of something like the environment where you are not just looking at a financial penalty but at different ways, which we will touch on later in the amendments of my noble and learned friend, of corporations recognising their responsibilities in practical rather than purely monetary terms.
I have, as I have previously expressed, some reservations about extending the doctrine to individuals, although I take my noble and learned friend’s point about drugs, which is made on a day on which the Government seem to have been much too quick to reject a call from the Home Affairs Select Committee for a Royal Commission to look into what is not a noticeably successful policy on drugs and their impact on society and the courts. However, clearly, the Government are not minded to move things in the direction that either I or my noble and learned friend would wish tonight. In the circumstances, I beg leave to withdraw the amendment.
Lord Goldsmith
Lord Goldsmith
My Lords, I will speak to all four amendments in this group, which are in my name. Amendments 116A and 116B cover the same grounds. They are really alternatives, and I will explain why. However, the fundamental point is that they deal with the provision in the Bill that the,
“amount of any financial penalty agreed between the prosecutor and”—
the company—let us call it that—
“must be broadly comparable to the fine that a court would have imposed on”—
the company—
“on conviction for the alleged offence following a guilty plea”.
I firmly believe that that is a wrong provision. It removes, first, the incentive for an agreement to be made. It is odd, because the Government put forward the limitations on the deferred prosecution agreement on the pragmatic grounds that it is often difficult to prosecute these offences. Therefore they want to have an alternative system which people suspected guilty of financial or economic crime will be prepared to accept. Well, they will be prepared to accept it if the offer is acceptable. There is another point to which I will come, but this provision says that if you do the deal you can only do it on the basis of the same financial penalty. Bear in mind that we are dealing with companies and commercial organisations which cannot be sent to prison, so it is the financial penalty which matters. It seems, with respect, to make no sense to remove the possibility from an agreement which provides some sort of incentive to make that agreement. To impose a requirement that the penalty must be,
“broadly comparable to the fine that a court would have imposed on … a guilty plea”,
seems, as I have suggested, to be wrong in principle.
However, there is another reason. It was pointed out clearly by the noble Lord, Lord Marks of Henley-on-Thames, in Committee, when he noted that this provision only applies if there is a financial penalty. There are a number of options in the agreement: a financial penalty; compensation; donation of money to charity; disgorgement of profits; implementing a compliance programme; and so on. There is a whole menu, but this provision says that if you have a financial penalty is has got to be the same fine that would have been imposed, broadly speaking.
That seems to lead to an absurd situation. In the discussions that are taking place, the company will say, “We don’t want to pay the full fine that we would have paid. We are prepared to accept our guilt even though we think that we could fight this in court and get off, but we do not want to pay the full penalty”. Then the prosecutor is faced with saying, “Well, either that means no penalty at all, because then I can escape the straitjacket of subsection (4), or you have to pay the full penalty, so there is no deal. So we will be forced to go into court; we may lose the case; it will cost the public a great deal”. It seems to make no sense at all, and the noble Lord, Lord Marks, was quite right to draw attention to that.
It is critical that deferred prosecution agreements work. Of all the amendments necessary to make this work, I suggest that this is one. One needs to remove the straitjacket whereby the penalty has to be the same as the fine that would have been imposed. In promoting that—I shall come to the way to do it—I want to underline that the scheme that the Government have put forward contains safeguards against a wrong agreement. Those safeguards are, first, that the deal has to be approved by the Director of Public Prosecutions, the director of the Serious Fraud Office or another senior prosecutor specifically designated for that role. There is no doubt that a senior prosecutor will have to make the decision. Secondly, the deal has to go through not one but two approvals of the court, the preliminary approval and the final approval. That is the structure of the proposal. I cannot see why this opportunity to make an agreement with some greater incentive should be removed.
There are two ways of achieving this, and that is what my two alternative amendments are designed to do. One is simply to remove sub-paragraph (4) altogether. I would be content with that. It achieves the objective and it leaves it to the discretion of the prosecutor and the court to fix the right elements. If there is some sentencing guideline as to what is appropriate, that is perfectly proper and perhaps it does not need to be contained in the Bill. That way of dealing with the matter meets an objection raised when I spoke to the other amendment in Committee when it was said that by saying “not more than broadly comparable”, one had to work out what the fine would have been, that that was difficult and it was therefore unreasonable to say that it should be “not more than broadly comparable”. I did not say then what I say now: that seems to be an objection to the provision as it stands, in any event. If the Government prefer, I accept that the alternative way of doing this would be not to say that the amount of any financial penalty should be “broadly comparable” to the fine that would have been imposed on a guilty plea, but “not more than” such a fine. It sets a finite level.
I want to make one further point before I briefly deal with the two other amendments in my name, Amendments 116C and 116D. I have gone back to the consultation paper to consider what respondents actually said on this issue because a question arose in our meeting as to whether I had recollected correctly that a majority of respondents had thought that the reduction should not be limited to the one-third reduction that one receives on a guilty plea. On page 28 of the Government’s response to the consultation paper at paragraph 102, it is stated:
“57% of respondents disagreed with the proposed maximum reduction of one third”.
Also, paragraph 105 states:
“We have noted the concerns raised by respondents that the maximum penalty level of one third may not prove to be sufficiently attractive in practice”.
Those are exactly the points that I have raised, and it appears that a majority of respondents took that view. I take some heart from that.
The other two amendments go together. Amendments 116C and 116D are simply intended to provide that in a deferred prosecution agreement there should be an obligation to spell out to the person who accepts it what the consequences may be, so that people know where they stand. There may be other ways of achieving that, but it seems right that the deferred prosecution agreement should, one way or another, make it clear to someone who is signing up to it what the consequences may be. Of course, if the person signing up to the agreement is a great corporation advised by substantial firms of lawyers, they do not need such a provision, but these cases may not be limited to such corporations and people deserve to be told just what they are getting into. I beg to move.
The Lord Speaker (Baroness D'Souza)
My Lords, I should warn your Lordships that if this amendment is agreed to, I cannot call Amendment 116B by reason of pre-emption.
Lord Beecham
My Lords, I respectfully adopt and support most of my noble and learned friend’s comments and indeed most of his amendments. If I had a preference between Amendments 116A and 116B, I think it would be Amendment 116B, but it would be interesting to hear which way, if either, the Minister inclines on that particular aspect.
It seems very sensible that other possible consequences of a failure to comply should be incorporated, so I endorse Amendments 116C and 116D. As to the amendment in my name and that of my noble friend Lord Rosser, we return again to the principle of having these novel matters debated openly before the new process is set in motion. In this particular case, it is a matter of having the financial penalties and parameters that would be proposed by the Sentencing Council subjected to scrutiny and debate but not, as I suggested in Committee, to an affirmative procedure. In retrospect, I think that was going too far and perhaps trespassing on the role of the Sentencing Council in an unacceptable way, although I note that there seem to be some judicial misgivings about the operation of the council. Be that as it may, it does not relate specifically to this point.
Again, bearing in mind the need to carry public opinion with us on this new process, it would be helpful to have that debate before the Sentencing Council’s proposals became adopted. The novelty of the process is such that not only would that be justified but it would actually assist in securing public acceptance. I can anticipate the next amendment, which is very much on the same line; again, having it debated should inform both public opinion and possibly the final decision-makers in a way that can only contribute to the success of the experiment, if that is what it is. I suspect that it will be a successful experiment on which we are embarking.
On the question of incentives, my noble and learned friend is right. It is quite clear from the American example—I repeat for the second or third time that very much larger sums are secured under the American system—that an incentive has to be provided. Whether that is a maximum of one-third or not is another matter. I am not entirely surprised that most respondents disagreed with a maximum of one-third; no doubt they would prefer it to be larger, which underlines my point, but there needs to be some open debate about this before a final decision is made.
In these circumstances I hope that the Government will, even at this late stage, acknowledge that there is substance in my noble and learned friend’s amendments, and I hope that they will also agree that my proposal would actually assist in gaining acceptance for this new process, both by the public at large and by those who will potentially be the subject of its operation. In that spirit, I beg leave to move the amendment in my name.
Lord Marks of Henley-on-Thames
My Lords, I will be brief. In relation to Amendments 116A and 116B, after two debates in Committee and our meeting, I am still entirely unclear why the Bill as drafted contains only the all-or-nothing choice in relation to financial penalties. As the noble and learned Lord, Lord Goldsmith, pointed out, the arrangements proposed are that the financial penalty should be optional only, but if there is a financial penalty then it must be broadly comparable to the fine that would be imposed on a guilty plea. I suggest that that is illogical because there is no room for such a reduced financial penalty, and there is no reason why there should be no room for one.
Lord Ahmad of Wimbledon
My Lords, paragraph 5 to Schedule 17 sets out both the mandatory elements that every DPA must include, namely an agreed statement of facts, an expiry date and a non-exhaustive list of potential financial and non-financial terms. Each agreement will be tailored to take into account the particular type and extent of the alleged wrongdoing, as well as the wider circumstances of the case and the situation.
A financial penalty is one of the terms that an agreement may contain. We expect that a financial penalty is very likely to be a term in the majority of DPAs. Let me make the Government’s intention clear. The Government believe the level of the financial penalty should bear close relation to the fine that would have been imposed following conviction in court after a guilty plea. A DPA is not a soft option for organisations and setting financial penalties at an appropriate level is important in achieving that.
The noble and learned Lord, Lord Goldsmith, asked whether the financial penalty is optional. The Government believe that parties should be able consider all circumstances of the individual case and this may include a large compensation payment, which will take priority over financial penalty. In the drafting of paragraph 5(4) we have provided an approach to setting a financial penalty that will achieve that aim. The key aspects are: an incentive, in the form of a discount of any penalty—I will come onto the issue of a discount in a moment; consistency of approach with sentencing upon conviction; certainty as regards the level of financial penalty; proportionality as the parties and courts will be able to take into account the means of the organisation and the level of other monetary terms, such as compensation, that take priority.
The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, both mentioned incentives. The primary incentive for entering into a DPA is to avoid prosecution and conviction, both of which have the potential to cause huge reputational damage and to give rise to other negative consequences for an organisation. As someone who has spent 20 years working in the corporate world, let me assure noble Lords that reputation for a corporate body is of immense importance, and a DPA provides a route where that can be protected.
Our scheme provides a further incentive: any financial penalty under a DPA would be discounted to reflect the position a defendant would be in after pleading guilty in a timely way. In other words, the organisation could benefit, as again the noble and learned Lord mentioned, from a discount of up to one-third. A total of 94% of the respondents to our consultation supported our proposals for a discount although, as has been pointed out already, there was no consensus on whether there should be a maximum reduction and what that might be. Indeed, the figure cited of 57% of respondents did not support having a maximum discount of one-third as we proposed. However, the important point is that there was no consensus as to what the alternative should be.
Furthermore, we know from our consultation and engagement that it is essential that there is consistency of approach and some certainty as to the potential level of financial penalties. Organisations made it clear to us during the consultation that they would not enter into a DPA if there was a real risk that the penalty negotiated and agreed with the prosecutor would be out of line with what a judge thought appropriate.
Through paragraph 5(4) we have, therefore, provided that where a financial penalty term is to be included in the agreement, the sum payable should be broadly comparable to the fine that would have been imposed for the alleged offence on conviction following a guilty plea. This will allow parties to have regard to the guidelines on both sentencing for particular offences and principles including discounts for early guilty pleas. We believe this provision provides an essential benchmark on setting a penalty, not only to the parties but also to the judge, who will decide whether the amount that the organisation and prosecutor have agreed is fair, reasonable and proportionate. Both parties and the judge have some comfort that they will be starting from a clear, common position. The organisation can therefore expect some certainty as to what it faces if it decides to enter into a DPA.
In determining a penalty that is “broadly comparable” to a fine a court would have imposed following a guilty plea, the parties will have regard to relevant sentencing guidelines produced by the Sentencing Council, including the guideline on an early guilty plea, which currently provides for a discount of up to a third. I will come on to the points regarding the Sentencing Council in a moment. But they will also have regard to other law and practice a sentencing court would follow so as to take account of matters such as the means of the defendant and how compensation should be prioritised over the other financial elements of a sentence. Without such a benchmark, we consider it likely that the two parties to the DPA could have such widely divergent opinions as to what the level of the penalty should be that discussions would be unworkable, making negotiations protracted and difficult. This is exactly what we are seeking to avoid by providing for DPAs. We therefore consider that paragraph 5(4) will enable the parties, and ultimately the courts, to ensure that the financial elements of a DPA, taken as a whole, reflect a proportionate and balanced approach. To be clear, this is essential to ensure that a DPA does not look like a soft-option; anything less, in our view, would risk giving that impression.
Amendment 116A would remove paragraph 5(4), thereby providing no guidance at all for the parties or court as to how to approach setting a penalty under a DPA. This would be undesirable for a number of reasons, not least that the parties would be denied guidance on an appropriate penalty. In the event that paragraph 5(4) was to remain part of Schedule 17, Amendment 116B would provide that the financial penalty term should not exceed the fine that a court would have imposed. Again, this would deny the parties and the court the appropriate level of guidance they desire, and suggests that the parties might agree a fine well below what a sentencing court would have imposed upon a guilty plea. For the reasons I set out earlier, this would in our view be unworkable. It also gives the impression that DPAs are a soft option. We do not agree therefore that it is necessary to set a bar as proposed, but with no lower limit. Paragraph 5(4) sets out the clearest and in our view most workable solution to determining a financial penalty.
The noble Lord, Lord Beecham, has tabled Amendment 116BA, which is a variation of an amendment considered in Committee in relation to parliamentary scrutiny of guidance on setting financial penalties. The amendment would require the Sentencing Council to lay before Parliament its proposals for setting a financial penalty. Although not explicit from the terms of the amendment, we understand this to mean any proposal prepared by the Sentencing Council in relation to financial penalty payable under a term of a DPA.
The Sentencing Council has informed us that it is committed to producing sentencing guidelines for many of the economic and financial offences listed within Part 3 of the schedule, which will be in place in time for the implementation of our proposals, to which the noble Lord, Lord Beecham, referred. These guidelines will also cover corporate offending. As a result, a separate DPA guideline is no longer necessary. We will instead be riding on the coattails of guidelines which are produced for a different purpose: namely, sentencing a defendant after a conviction. Those guidelines are already subject to appropriate consultation and scrutiny. Under the Coroners and Justice Act 2009 the Sentencing Council has an obligation to consult a number of interested parties on any sentencing guidelines it proposes. In particular, it has a statutory obligation to consult the Justice Select Committee of the House of Commons. This provides an appropriate opportunity for parliamentary input into these guidelines.
We do not consider that scrutiny beyond that described is necessary or appropriate. The fact that the Sentencing Council’s guidelines will be referred to by the parties and judges in the process is secondary to the primary purpose for which they are developed and used: that is, determining sentence on conviction, and for which there is a robust and comprehensive development and review process.
Amendments 116C and 116D relate to a provision we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with an agreement. We included this provision as a way for the parties to deal with some forms of non-compliance with a DPA capable of being objectively determined such as the late payment of money under a DPA. The aim is for the parties to be able to remedy such non-compliance without recourse to the court: for example, by way of punitive interest in relation to a late payment. Such a term would be negotiated alongside all other terms of an agreement and approved by the judge. We do not envisage that such a term would be appropriate in all cases. Whether or not an agreement includes such a term, paragraph 9 of Schedule 17 provides the formal procedure for dealing with non-compliance of a DPA, which will be the most appropriate way for addressing most instances of non-compliance.
Lord Goldsmith
My Lords, I very much regret to say that they have not been addressed. I am not going to press either amendment, but I want to say something about them because I want the Government to think a little further.
As regards the second set, I am afraid that the Government miss my point altogether. I invite the noble Lord and his officials to consider whether there is a way of ensuring that people who sign up to DPAs know what the consequences may be. I am not going to say anything more about that; it is an obvious point. The point that he made in response does not actually meet it; it meets a different point.
Let me go back to the first point. I detected three reasons why—and I was very disappointed by this—they said that it was inappropriate to accept either of the two amendments that I have put forward. One is the fear that if my amendments were accepted, the penalties would get out of line with what would happen in court. If that is saying any more than we want them to be the same, it is adding nothing to that. The parties will be in a position to know what the court would have imposed and can of course use that as a guidance without there being an obligation to fix at the same level.
Secondly, it said that there needs to be a benchmark. You have a benchmark by knowing what a court would do, and that could be a benchmark you can have in mind when you are negotiating. However, my second amendment would include that benchmark; I do not understand why it is thought otherwise. The real point—the third reason which the noble Lord repeated several times—is that it is thought that it will be a soft option. I really would invite the Government to think again. This is not a soft option because what is being overlooked each time is that the range of things that can be achieved in a DPA are not just the financial penalty. You would not get on a conviction an order for compliance; you would not get on a conviction an order for a monitor; you would not get on a conviction an order to make a payment to charity. You might get compensation for victims, but that would probably not be as well as a huge fine, because the court would take into account the fact that there is a limited financial obligation overall that should be imposed on the defendant. So it is not a soft option, and I invite the Government to get out of that frame of thinking about it and maybe one or two other times today the same point has come about.
I urge the Government to think again because they are about to make DPAs unworkable and fail to achieve the objectives they set. I will withdraw the amendment this evening—I am not saying that I will not bring it back. However, I really would respectfully—I do not normally use that word here, but I mean it all the time—invite the Government to think again and to question their view about this amendment. We will see where we get to by Third Reading.