House of Commons

Monday 14th January 2013 Commons Chamber

Monday 14 January 2013

The House met at half-past Two o’clock

Prayers

Monday 14th January 2013 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Monday 14th January 2013 Commons Chamber

The Secretary of State was asked—

[Michael Fabricant (Lichfield) (Con)]

1. What recent assessment he has made of the readiness of British forces based in the Falkland Islands; and if he will make a statement.

[The Minister for the Armed Forces (Mr Andrew Robathan)]

My right hon. Friend the Defence Secretary is, as we speak, en route to Australia with the Foreign Secretary to attend the Australia and UK ministerial talks, and sends his apologies both to you, Mr Speaker, and to the House.

Before I answer the question asked by my hon. Friend the Member for Lichfield (Michael Fabricant) I am sure that he and the whole House would like to join me in paying tribute to Sapper Richard Walker, who was killed in Afghanistan last Monday. Sapper Walker was, by all accounts, an impressive young soldier. The loss felt by his colleagues, friends and family is unimaginable and a reminder of the difficult and dangerous job that our brave armed forces do every day. I was in Afghanistan last week and saw for myself the real progress that is being made in helping the Afghans take responsibility for their own security, which in turn protects us here at home. We honour Sapper Walker’s sacrifice and send our heartfelt condolences to his family.

Turning to the question, the Ministry of Defence keeps force levels in the south Atlantic under constant review to ensure that we retain appropriate levels of defensive capabilities. We retain the ability to reinforce the Falkland Islands should the need arise.

[Michael Fabricant]

My right hon. Friend will know that there is increased sabre-rattling from President Cristina Kirchner and that on 11 March there will be a referendum in the Falklands regarding their future status. Does he think and is he confident that our present armed forces on the Falkland Islands can defend the islands, and are we capable of quick reinforcement should that be necessary?

[Mr Robathan]

We all hope and, indeed, expect that the referendum will reinforce the relationship between Britain and the Falkland Islands. This is, of course, a Falkland Islands Government initiative. On the ability to defend the Falklands, we have—this is all in the public domain—four Typhoon aircraft, a company of soldiers, a south Atlantic guard ship and, of course, submarines, but we do not comment on where they are to be found. I am confident that we can defend the islands and we also have Mount Pleasant airfield for immediate reinforcement by air.

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

In the event that the Argentines should illegally occupy the Falkland Islands again, what assistance does the Minister expect from French military forces in expelling any invaders? Has he had any discussions with his European counterparts with regard to their assistance this time around?

[Mr Robathan]

First, I think it highly unlikely that the Argentines will invade the Falkland Islands, not least because I understand that there is a clause in Argentina’s constitution that specifically excludes invading the Falkland Islands or taking them by force. I have not had any discussions with the French on this matter and nor do I think has my right hon. Friend the Secretary of State.

[Bob Stewart (Beckenham) (Con)]

Further to that point, does my right hon. Friend agree that the Argentine armed forces are pretty much incapable of invading the Falkland Islands? Their submarines have been underwater for only six hours each this year and most of their aircraft are grounded through lack of spares and lack of training.

[Mr Robathan]

My hon. Friend makes a good point. Indeed, since the days of General Galtieri, there has been a definite separation between the civilian Government and the armed forces. Certainly, it does not appear—although one should not be complacent—that their armed forces are well equipped at the moment.

[Mel Stride (Central Devon) (Con)]

2. What recent discussions he has had with European Defence Ministers on the security situation in Mali.

[The Minister for the Armed Forces (Mr Andrew Robathan)]

The UK has been heavily involved in discussions on Mali, both in multilateral institutions and bilaterally for many months. Over the weekend, we responded swiftly to a request from the French for logistical assistance by making available two C-17 transport aircraft. The Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for Boston and Skegness (Mark Simmonds), who has responsibility for Africa, will make a statement to the House on the situation in Mali later this afternoon.

[Mel Stride]

I met recently with my constituent, Caroline Hart, who, through the Joliba Trust, has done a great deal to alleviate suffering in Mali. One of her and her colleagues’ main concerns on the ground in that country is the widespread abuse of human rights on all sides of the conflict. Will my right hon. Friend please set out the steps that the Government are taking to ensure that human rights are at the centre of what we do as we engage in that conflict?

[Mr Robathan]

My hon. Friend makes a very good point. Mali is not a country that is renowned for good human rights. The rebel forces, who appear to be Islamist and linked to al-Qaeda, are likely to carry out even worse abuses than anything that has been seen before. We are supporting our French allies in Mali, in support of United Nations Security Council resolution 2087. I know that everybody at the United Nations will be concerned about human rights, as is everybody in this Government.

[Mr Jim Murphy (East Renfrewshire) (Lab)]

The Opposition share in the tribute offered by the Minister to Sapper Walker and his family at this dreadful time, following his loss in Afghanistan.

The situation in Mali is grave, with al-Qaeda in the Islamic Maghreb controlling huge swathes of the country. Unchecked, that could become a real threat to the UK and to others. That is why we support the action that is being taken. However, can the Minister spell out the full list of military capabilities that have been offered to the French, and will he rule out the deployment of additional UK military assets in response to the Mali crisis?

[Mr Robathan]

I am grateful to the right hon. Gentleman for his condolences to Sapper Walker’s family and for his support for our action in supporting the French. We gave the C-17 aircraft in response to a request from the French for support. They have not asked for any further assets, nor have we offered them. At the moment, we have no plans to deploy any ground forces to Mali.

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

I support with enthusiasm this well-timed illustration of European co-operation and hope that it is the harbinger of things to come. May I ask my right hon. Friend a number of questions about the military aspects?

[Mr Speaker]

One question.

[Sir Menzies Campbell]

Who will have command and control of the aircraft? Without going into details, will adequate and proper intelligence be provided? Since the French do not operate C-17s, is it the intention to deploy ground crew in support of the aircraft?

[Mr Robathan]

Buy one, get three free. First, I agree entirely with the right hon. and learned Gentleman about European co-operation. This matter gives the lie to those who say that we do not co-operate with our European allies and friends. I am getting lost thinking about what questions he asked. On whether we have adequate intelligence, the French have intelligence. We are sending our C-17s only into remote Bamako, the capital. We are sending C-17s because they are an asset that the French cannot replicate, so they have to charter such aircraft. I cannot remember what the third question was. [Hon. Members: “Ground crew.”] I do not believe that we are putting in a substantial ground crew, but I am sure that some people will be on the ground briefly. This deployment has a limited time scale of one week, although that could increase.

[Andrew Stephenson (Pendle) (Con)]

3. What discussions his Department has had with other Government Departments on supporting the armed forces covenant.

[Peter Aldous (Waveney) (Con)]

9. What discussions his Department has had with other Government Departments on supporting the armed forces covenant.

[The Minister of State, Ministry of Defence (Mr Mark Francois)]

The covenant is a matter for the whole of Government and sustained progress requires close working across Whitehall. To oversee that work and maintain the momentum, a Cabinet Sub-Committee on the armed forces covenant was established in February 2012, led by my right hon. Friend the Minister for Government Policy. The Committee met four times in 2012. It works closely with the covenant reference group, which includes representation from the service community and a number of key service charities, as well as armed forces advocates from Departments and the devolved Administrations.

[Andrew Stephenson]

Specifically with regard to co-operation with the Department of Health, will the Minister say what is being done to improve mental health provision for those who are serving and for veterans?

[Mr Francois]

I assure the House that we work very closely with our colleagues in the Department of Health on these important issues. We have delivered improvements in mental health care provision, including greater access to mental health care for up to six months after discharge, an increase in the number of veterans’ mental health nurses, a 24-hour helpline, and a support and advice website, popularly known as the Big White Wall, which has proved popular with veterans, including some of those facing these challenges.

[Peter Aldous]

Given that about 300 out of the 430 local authorities, including Suffolk county council and Waveney district council, have signed a community covenant between the civilian and armed forces communities in their area, does the Minister agree that it would be fantastic if all Departments and local authorities that are yet to sign such a covenant did so by Armed Forces day on 29 June?

[Mr Francois]

I am encouraged by the number of local authorities around the country that have signed community covenants and pledged to do their best for armed forces communities, the families of those who are serving and veterans. It would be fantastic if local authorities were to sign up by that date, but we should not have to wait until then—the more the merrier and the sooner the better.

[Lyn Brown (West Ham) (Lab)]

In the Government’s annual covenant report, forces federations state that they

“remain deeply concerned at the cumulative effect of the impact of the pay freeze for many, allowances cuts, including significant and sudden reductions in overseas allowances that have been imposed on families mid-tour, and changes to pensions indexing.”

Is it not the case that, although the Government have enshrined the covenant in law, their actions simply undermine it?

[Mr Francois]

I do not accept that last assertion. It is true that we have enshrined the key principles of the armed forces covenant in law, and I was proud to be one of those who served on the Armed Forces Bill Committee, which helped bring that process to fruition. I work closely with the Army Families Federation; in fact, one of my first appointments as a Minister in the Department was to go and talk to 300 Army wives at the AFF conference. I listen carefully to what it says and will continue to do so.

[Gemma Doyle (West Dunbartonshire) (Lab/Co-op)]

I welcome the publication of the report and note the comments of service charities on the covenant reference group, who state:

“We continue to hope that, in line with the 2010 Coalition Agreement, the Government will use any efficiencies and other monies that become available within the MoD budget, to invest in”

decent homes. Was it not therefore deeply careless that the Ministry of Defence very nearly had to surrender a reported underspend of hundreds of millions of pounds to the Treasury at the end of last year? Why did it not allocate at least part of it to housing, and will it do so now?

[Mr Francois]

As the hon. Lady will know, some months ago we injected an additional £100 million for housing back into the programme, and we need to ensure that that money is well spent. I take a particularly close interest in the quality of service accommodation. At the AFF conference, which I mentioned in my previous answer, one serviceman raised with me an issue about the poor quality of his quarter, and two weeks later I went and knocked on his door to see it for myself. I cannot promise to do that for every serviceman who raises an issue, but I take the matter seriously and will most certainly continue to do so.

[Sir Bob Russell (Colchester) (LD)]

The reality and the rhetoric of the armed forces covenant are such that there is a feeling of betrayal in the Colchester garrison. In 1997, there were 33 Ministry of Defence police officers there looking after the Army married quarters and Army schools. In April, the last MOD police officer will be made redundant. May I urge the Minister at the very least to reinstate some MOD police at the Colchester garrison?

[Mr Francois]

As ever, my hon. Friend mentions Colchester, which I know he represents vociferously on these matters. I have already had a meeting with the chief constable of the MOD police and one with the Defence Police Federation to discuss issues such as the profile of manning at sites. I am also planning in the near future to visit RAF Wethersfield, where, as my hon. Friend knows, the MOD police are based, and I intend to continue the dialogue at that meeting.

[Nic Dakin (Scunthorpe) (Lab)]

Does the Minister share my concern that Army regulars, including those serving in Afghanistan, reservists and trainees are likely to be badly affected by the Government’s bedroom tax, which goes against the whole direction of the covenant?

[Mr Francois]

I am not sure that the effect will be exactly as the hon. Gentleman outlines, but he raises a specific issue, and to do it proper justice I will look into it when I get back to the Department and write to him about it.

[Gavin Williamson (South Staffordshire) (Con)]

4. What support he has given to the promotion of British defence exports.

[The Parliamentary Under-Secretary of State for Defence (Mr Philip Dunne)]

Under this Government, there has been a sea change in both attitude and activity in support of responsible defence exports. There has been a concerted effort by senior ministerial colleagues, from the Prime Minister downwards, to support British defence exports by promoting proven British equipment. The announcement just before Christmas of the sale of 12 Typhoon and 8 Hawk aircraft to Oman is a good example.

[Gavin Williamson]

Often when we talk about defence exports, we mean big deals by large companies, but as my hon. Friend will know from when he visited Oldbury UK in my constituency, many small and medium-sized businesses are involved in the defence sector. What additional support and encouragement is he giving to small and medium-sized enterprises to consider exporting more?

[Mr Dunne]

I was pleased that my hon. Friend was able to accompany me on my visit to the firm in his constituency to which he referred. I have been appointed the SME champion in the Ministry of Defence. Where possible I am seeking to raise the emphasis on procurement —both direct and through our prime contractors—towards SMEs, given the source of innovation that they so often provide. The next SME forum, which I shall be chairing shortly, will focus its activities on how we can improve export prospects for SMEs.

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

Notwithstanding the Minister’s answer that he is an SME champion in the MOD, does he not see it as incompatible with his Government’s default position to buy off the shelf rather than seek greater exports from British industry? Will he commit to giving extra effort and support to UK sovereign companies?

[Mr Dunne]

As the hon. Gentleman will appreciate, some larger procurements within the MOD cannot, by definition, be directed towards SMEs—the contract size is such that if it were awarded, the company would cease to be an SME. That said, the White Paper published in February last year made a specific pledge towards open procurement and to encourage the purchase of matériel through competitive process. That is the best way to maintain a fit industrial base in this country that is capable of exporting and winning orders through competition. Alongside that was a commitment to increase the proportion of goods purchased from SMEs.

[George Eustice (Camborne and Redruth) (Con)]

5. What recent progress he has made on improving the interoperability of UK and French expeditionary forces.

[The Minister for the Armed Forces (Mr Andrew Robathan)]

Following the 2010 Lancaster House treaties and operations in Libya, interoperability with France continues to improve—indeed, I have further examples of co-operation with our French allies. Two weeks ago, a Royal Navy helicopter operating from a French frigate as a part of Operation Atalanta played a significant role in the arrest of 12 Somali pirates. As I said, last weekend at the request of President Hollande we agreed to provide two RAF C-17s to support the deployment of French troops and equipment to Mali. We are working successfully to establish the combined joint expeditionary force—CJEF—which is planned to reach full operating capability in 2016. In the longer term we are taking forward a comprehensive portfolio of co-operation on equipment and capabilities that will provide both nations with the capabilities to meet the needs of our expeditionary forces including, for instance, unmanned aerial vehicles and missiles known as complex weapons.

[George Eustice]

In the light of events in recent days in Mali and British logistical support for the French operation there, will the Minister say a little more about what is being done to improve co-operation specifically on the sharing and deployment of military equipment?

[Mr Robathan]

On the deployment of military equipment, we are using the C-17s to deploy French military equipment. On joint working, we are particularly looking at Watchkeeper—an unmanned aerial vehicle—and future combat air systems, which are looking at very complex issues. We are also, of course, working together on the A400M.

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

In October 2010 the Prime Minister said that switching to the F-35C would increase operability with the French carrier. Given that the French do not have the right weapons, that their pilots would not be trained on the F-35, and that the F-35 could not land or take off on the Charles de Gaulle, what exactly did the Prime Minister mean?

[Mr Robathan]

Switching variant does not make any difference to whether or not the aircraft could land on the Charles de Gaulle. We are co-operating with the Charles de Gaulle and we do not see the two aircraft carriers as being interoperable; we see them as separate but linked assets, and we certainly support the French. Indeed, during Exercise Corsican Lion, the Secretary of State, the Under-Secretary of State for Defence, my hon. Friend the Member for Ludlow (Mr Dunne) and I had lunch on the Charles de Gaulle, and very good it was too. I assure hon. Members that we discussed equipment, interoperability and other matters.

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

6. What support he has received from major employers for the proposals set out in his Reserves Green Paper.

[Jack Lopresti (Filton and Bradley Stoke) (Con)]

13. What support he has received from major employers for the proposals set out in his Reserves Green Paper.

[The Minister of State, Ministry of Defence (Mr Mark Francois)]

As I informed the House on 26 November a number of large companies have shown their support for our reservists and the Green Paper consultation process. Some have held their own reserves awareness events. We have received over 2,400 responses to the consultation to date—not all from my hon. Friend the Member for Canterbury (Mr Brazier)—and we held a workshop on 11 January with major employers and the Secretary of State. We continue to engage with major employers, but also with medium-sized and small businesses, the CBI, the Federation of Small Businesses and other employer organisations to ensure that we capture the views of as broad a range of employers as possible.

[Mr Baron]

I thank the Minister for that response, but the Government will know that I think it unwise to disband regular infantry battalions, such as 2nd Battalion the Royal Regiment of Fusiliers, before first being certain that the reservists can plug the gap. What objective measures exist for Parliament to gauge the progress of Government plans in this regard?

[Mr Francois]

I acknowledge the strong interest that my hon. Friend has taken in the fate of his old regiment. I think that the whole House can understand his motivation for doing that. Our plan is for the Army to achieve its full strength of 30,000 trained volunteer reservists in 2018 from its current trained and in-training volunteer reservist strength of 25,000. These are early days, but I am delighted that the recent tri-service recruiting campaigns have produced a 25% increase in Territorial Army inquiries and that regular Army enlistment is up by 3% against a three-year rolling average. We regard both those statistics as good news.

[Jack Lopresti]

What steps will be taken to ensure that there is not a one-size-fits-all approach to employers and reservists, and that instead the Government will consider factors such as the size and complexity of the business?

[Mr Francois]

I pay tribute to my hon. Friend, who, as many in the House will know, was mobilised and saw active service on behalf of his country on Operation Herrick and therefore clearly understands this issue very well. I stress to him that we considered this question carefully in the consultation, and we are mindful that, proportionally, for some smaller and medium-sized employers it is a greater challenge to let reservists go and be deployed than it is for some larger organisations. We have been talking to employers about it and intend to set out the way forward when we publish the White Paper in the spring.

[Julie Hilling (Bolton West) (Lab)]

Will the Government legislate to ensure that employers cannot discriminate against reservists in their hiring policies, promotion or in other ways in the workplace?

[Mr Francois]

I understand exactly the hon. Lady’s question, and we will lay out our proposals when we publish the White Paper in the spring. At the moment, our instinct is not to legislate and to try and persuade, but we understand the difficulty and will address the issue specifically when we publish the White Paper.

[Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)]

Will the Minister tell the House how many reservists he expects to be on extended readiness at any one time?

[Mr Francois]

Again, we will lay out the exact profile for how we intend to deploy the reserves when we publish the White Paper. We should bear it in mind that the process will run for several years. Again, the answer will be addressed when we publish the White Paper in the spring, but I stress to the House how seriously we take this process. To use an old Army term, we will publish the White Paper, then cross the start line and get on with it.

[Patrick Mercer (Newark) (Con)]

What incentives are being offered to regular soldiers, upon discharge or redundancy, to join the volunteer reserve?

[Mr Francois]

I thank my hon. Friend for his question and say in passing that I look forward to visiting the Newark patriotic fund in his constituency later this week. On the question about incentives, I hope that the House will forgive me if again I pray in aid the White Paper. We are considering the issue as we prepare our plan, which we will lay out in the spring, and I can assure him that we are mindful of his point.

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

We know that the Government are reducing the size of the regular Army, with the constant issuing of redundancy notices to members of our armed forces. There is clearly a concern that there will be a gap between regular service personnel and the new plans for reservists coming into place. How confident is the Minister that reservists will be able to meet those demands and that he can get employers to release reservists covered by the present legislation?

[Mr Francois]

I hope that I have already mentioned the point about legislation in an earlier answer. With regard to numbers, we continue to manage the growth in the Army reserve and the reduction in regular numbers closely. Beyond the end of operations in Afghanistan, these trajectories will be kept under close review to ensure that we can take early action to maintain an appropriate force level to meet our planning assumptions.

[Karl MᶜCartney (Lincoln) (Con)]

7. What recent discussions he has had with his international security assistance force partners on the draw-down of combat troops from Afghanistan.

[The Minister for the Armed Forces (Mr Andrew Robathan)]

The timing and number of troop draw-down is a matter for individual countries, in discussion with the international security assistance force. However, we have regular and routine discussions with a number of our NATO and ISAF allies on a range of issues, including force levels in Afghanistan. With our allies, we remain committed to the strategy and time scales agreed at the NATO Lisbon summit in 2010. We also stand firmly by our commitments made at the Chicago summit in May, and we will continue to support the Afghan national security forces long after 2014 when our combat mission ends. As the ANSF continue to grow in capability and capacity, and increasingly take the security lead throughout Afghanistan, it is right that ISAF nations gradually draw down their force levels.

[Karl MᶜCartney]

Can the Minister elaborate on the Department’s definition of combat troops? Perhaps more importantly, could he elucidate for the House the definition of non-combat troops—and will this change after 2014?

[Mr Robathan]

My hon. Friend asks a very good question. I was in Afghanistan last week. We envisage the primary role of British forces after 2014 to be assisting, mentoring and teaching at the Afghan national officer academy in Qargha outside Kabul. Beyond that, after 2014, we do not envisage any combat troops being involved in what one might describe as face-to-face operations with the enemy; we see them—if at all—in a mentoring capacity only.

[Paul Flynn (Newport West) (Lab)]

As the President of the United States and President Karzai met last week and were reported to have discussed accelerating the process of the withdrawal of troops, will the Government consider following the policies of the Netherlands and Canada and bring our troops home earlier?

[Mr Robathan]

We work in close co-operation with the Americans and other ISAF allies, and we have a sensible trajectory to withdraw all our combat troops by the end of next year. We are already not involved in the face-to-face operations in which we were involved two years’ ago, and we are witnessing a thankful reduction in our casualties. We do not intend to bring our troops out early. We think that that would be a great disadvantage to peace in Afghanistan.

[Sir Nick Harvey (North Devon) (LD)]

May I ask my right hon. Friend about the process of packing up and getting our kit out of Afghanistan and bringing it home? How long will that take? When will it begin and finish? How many troops will be tied up in that logistical task rather than the combat task? How much kit are we going to leave behind?

[Mr Speaker]

That was three or four questions. I shall indulge the former Minister—he is a knighted one, I note—but I know that the Minister will provide a pithy reply.

[Mr Robathan]

That is the second time today that I have been asked more than one question from the Liberal Democrat Benches. My hon. Friend is right to say that the withdrawal of our large amount of equipment in Afghanistan is a big issue. We are in negotiations with the Pakistanis and hope that we will be able to bring a great deal more back through the Pakistan land route than we are currently capable of doing. We expect to bring almost all our equipment out, although some may be gifted to the Afghans when we leave.

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

Does the Minister recall that the Secretary of State recently revealed to the House that there was a possibility that the Americans might take over Camp Bastion? Can he update the House on this matter, given that without the maintenance of one or more regional strategic bases, our interests in the area may well unravel after 2014?

[Mr Robathan]

My hon. Friend asks a good and searching question. Camp Bastion has had a great deal of investment. Notwithstanding the recent attack, it is a sensible place to have a base as it easily defensible, and we are in negotiations with the Americans and the Afghans on its future. I have no answer to give my hon. Friend at the moment, but I will keep him updated and, when there is a definite answer, I will write to him and let him know.

[Robert Halfon (Harlow) (Con)]

10. What recent assessment he has made of the security situation in the middle east; and if he will make a statement.

[The Parliamentary Under-Secretary of State for Defence (Dr Andrew Murrison)]

Demands for greater political, social and economic participation continue in the middle east and north Africa. The situation in Syria continues to deteriorate and we are supporting efforts to deliver a political solution to the conflict. The UK also remains concerned over Iran’s nuclear programme and continues to work with other countries to achieve a diplomatic solution to Tehran’s nuclear ambitions. In short, we assess that the regional security situation is fragile.

[Robert Halfon]

General Sir David Richards is reported as being seriously concerned that Syria’s chemical weapons could soon be either used or lost into the hands of terrorists. Will my hon. Friend set out to the House the preparations made by NATO to prevent Assad’s use of chemical weapons?

[Dr Murrison]

We have made it perfectly clear to President Assad that the use of these dreadful weapons is absolutely unacceptable. We know where they are, we have defined and delineated them, and we have plans to deal with them in the event that the regime falls, as ultimately it must. We are also in talks with the country’s neighbours to ensure that these weapons do not find their way into the hands of third parties. We look forward to a more enlightened regime in Syria that has no use for biological and chemical warfare and that will comply with its international obligations.

[Mike Gapes (Ilford South) (Lab/Co-op)]

Last week the Foreign Secretary made it clear that consideration is being given in the European Union possibly to lifting the arms embargo on the Syrian opposition. If that were to happen, what kind of equipment would we be supplying and what guarantee do we have that it would not get into the hands of radical, al-Qaeda-linked Islamist groups?

[Dr Murrison]

The hon. Gentleman will be aware that the Foreign Secretary, in Marrakesh at the end of last year, recognised Syrian opposition groups. The United Kingdom would like greater flexibility in the embargo on Syria, so that at some point in the future, possibly, we can supply the opposition groups that we are comfortable with with the means to deal with the situation; but there are no plans to do so at the moment and we will keep the matter under review.

[Mr Russell Brown (Dumfries and Galloway) (Lab)]

I am sure the Minister recognises the significance of the previous work of the International Atomic Energy Agency in carrying out nuclear investigations inside Iran. Has he made any assessment of late of the likelihood of such investigations recommencing?

[Dr Murrison]

That obviously is a matter for the International Atomic Energy Agency, but the key to this is the imposition of sanctions. I note that the E3 plus 3 will be meeting Iran shortly to discuss those. I am particularly pleased to note that exports of oil from Iran have dropped by 45%. We have seen the consequences of that—the sanctions are working—not least through the hyper-inflation affecting that country at the moment.

[Fiona Bruce (Congleton) (Con)]

11. What steps his Department is taking to increase the number of cadet forces in the UK.

[The Minister of State, Ministry of Defence (Mr Mark Francois)]

As announced by the Prime Minister and Deputy Prime Minister on armed forces day 2012, the Department for Education and the Ministry of Defence are working together to enable 100 more state-funded schools to have cadet units by 2015. The extra cadet units will be formed through partnerships with existing units or by self-standing new units, both using third- party sponsorship. The Departments have identified £10.85 million to meet the training and equipment costs of the programme. More than 70 state schools have already registered their interest in the programme and the joint departmental team, supported by the reserve forces and cadets associations, will be working with schools to develop the most appropriate cadet option for each individual school.

[Fiona Bruce]

I thank the Minister for that reply. Will he join me in commending the hugely dedicated leaders and committed cadets in my constituency, such as the Air Training Corps in Sandbach and Congleton, particularly the Tigers of 230 Squadron in Congleton ATC? Their dining-in night this week will celebrate another successful year of developing wide-ranging practical skills, confidence and qualifications, not least a clutch of bronze, silver and gold Duke of Edinburgh awards.

[Mr Francois]

I am delighted to join my hon. Friend in paying tribute to those units and, indeed, to cadet units across the country, which do so much to foster the right values in our young people. I would also like to take this opportunity to pay tribute to Leading Cadet A. Green of the Sea Cadets Corps, from the Winsford and Middlewich unit, who was appointed a Lord Lieutenant’s Cadet recently. We commend that cadet too.

[Diana Johnson (Kingston upon Hull North) (Lab)]

Private schools account for only 8% of all schools yet have 76% of cadet forces. Will the Minister confirm that, as a matter of urgency, he will switch the majority of the available funding to the state sector?

[Mr Francois]

As the hon. Lady rightly points out, it is a historical fact that the majority of cadet units in schools have historically been in the independent sector. The non-school cadet units, however, are spread across the whole country. Within schools, the bulk of the funding is focused, as I said in my earlier answer, towards trying to promote cadet units in state schools. Of those 70, a number of the new units, including one at an Essex school in Westcliff, are up and running.

[Neil Carmichael (Stroud) (Con)]

12. What discussions he has had with his ministerial colleagues on the shift in US defence policy from the Atlantic to the Pacific.

[The Parliamentary Under-Secretary of State for Defence (Dr Andrew Murrison)]

Regular discussions on defence policy, including US defence strategy, occur with Ministers both at home and abroad. The Defence Secretary will, for example, meet Secretary Panetta later this month and looks forward to meeting his successor at the earliest opportunity.

[Neil Carmichael]

When the Defence Secretary meets Chuck Hagel or anyone else who might have been ratified, will he discuss what measures can be used to encourage collaboration so that we can maximise the assets available at the organisation?

[Dr Murrison]

My hon. Friend is absolutely right. We need to make sure we make the best we can out of assets that are under increasing pressure. I note that President Obama’s guidance issued on 5 January last year, “Sustaining US Global Leadership”, set the scene for how US defence is likely to go. I am particularly pleased to see a high degree of correlation between that and our own strategic defence and security review outcomes. We are close to the Americans, and we look forward to the relationship continuing and developing in the future, as they are, as it were, our best friends.

[Glyn Davies (Montgomeryshire) (Con)]

14. What estimate he has made of the number of people employed in Scotland as part of the defence industrial base.

[The Parliamentary Under-Secretary of State for Defence (Mr Philip Dunne)]

There are over 15,000 military and civilian personnel employed in Scotland, including at the largest single site employer in Scotland, Her Majesty’s Naval Base Clyde. There are hundreds of contracts with defence companies operating in Scotland, but the Ministry of Defence no longer compiles employment statistics by region within the supply chain, as such information does not directly support either policy making or operations.

[Glyn Davies]

Does the Minister share my opinion that, from the perspective of the strength of our defence industrial base, from the perspective of job creation and retention and from the perspective of the effective defence of our nation, it is crucial that Scotland remains an integral part of the United Kingdom?

[Mr Dunne]

I entirely endorse my hon. Friend and neighbour’s view that maintaining Scotland within the United Kingdom will be the best way to maintain defence jobs in Scotland, to maintain a powerful industrial base in engineering and high-technology jobs and to provide Scotland with the best defence capability. The Scottish Government have yet to provide any answers on how they will provide such capability for defence and security in the unlikely event of an independent Scotland.

[Angus Robertson (Moray) (SNP)]

Last week, the UK Government published a paper about Faslane, which was widely reported together with incorrect job projections. Will the Minister dissociate the UK Government and the Better Together campaign from double counting and fabrication on such a serious issue?

[Mr Dunne]

The hon. Gentleman has clearly been reading information that is simply not emerging from the Ministry of Defence. The base at Faslane is the largest employment site in Scotland, with some 6,700 military and civilian jobs projected to increase by around 8,200 by 2022 as the Royal Navy moves all its submarines there. Those are the numbers.[Official Report, 16 January 2013, Vol. 556, c. 6MC.]

[Mr Edward Leigh (Gainsborough) (Con)]

18. Every new procurement Minister promises the House to get a grip on MOD procurement and the costs arising from our defence industrial base. In the light of the latest National Audit Office report that the cost of the MOD’s major projects has risen by a staggering £6.6 billion and is 39 years delayed, what action is the Minister taking?

[Mr Speaker]

With reference to Scotland, I think.

[Mr Dunne]

My hon. Friend asks what is being done to improve procurement in the MOD. I assure him that it is the top priority for the current year, at least for this procurement Minister. As I said earlier, we do not differentiate between Scotland and the rest of the United Kingdom when it comes to procurement.

In my view, the most interesting fact to emerge from the report from the National Audit Office was the improving trend in procurement. A reduction was forecast in the delivery costs of 13 of the 16 projects to which it referred, and 70% of the projected overspend relating to the remaining three related to increased fuel costs up to 2035 over which the MOD had no control whatsoever.

[Mr William Bain (Glasgow North East) (Lab)]

Has the Minister had an opportunity to consider last week’s report from the Scottish Affairs Committee, which states that a further 1,500 jobs at Her Majesty’s Naval Base Clyde could be lost by 2022 if Scotland became a separate state, and that 8,200 jobs relied directly on Scotland’s remaining part of the United Kingdom?

[Mr Dunne]

I was in Afghanistan with my right hon. Friend—[Interruption.]

[Mr Speaker]

Order. I apologise for interrupting the Minister, but I must remind the hon. Member for Moray (Angus Robertson) that he is the leader of his party and a very senior parliamentarian. It ill behoves him—and it is beneath his dignity—to yap across the community like an undisciplined puppy. He must conduct himself with decorum. That is what we expect of him. We look up to him, and we want to continue to do so.

[Mr Dunne]

I was about to explain to the hon. Member for Glasgow North East (Mr Bain) that unfortunately, as I was in Afghanistan with my right hon. Friend the Minister for the Armed Forces last week, I have not had an opportunity to read the report from the Scottish Affairs Committee, to which I gave evidence before Christmas. However, I look forward to reading it, and will certainly look out for the interesting statistic that the hon. Gentleman has revealed.

[Mel Stride (Central Devon) (Con)]

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

[The Minister for the Armed Forces (Mr Andrew Robathan)]

The Secretary of State’s first priority is and will remain the success of the operation in Afghanistan. Beyond that, his priority is to deliver the military tasks for which the MOD has a mandate. The MOD is also engaged in a major project of transformation to bring about the behavioural change that is needed to maintain a balanced budget, and to deliver equipment programmes so that our armed forces can be confident of being properly equipped and trained. With the benefit of a balanced budget on which to build, we now need to focus on the future and, in particular, on building the trust and confidence of the people who make up defence.

[Mel Stride]

My right hon. Friend will be aware of the concern expressed in the recent Defence Committee report on cyber-security in defence. I know that cyber-security is a very sensitive matter, but what can the Minister do to assure the public that we are well and truly on top of it?

[The Parliamentary Under-Secretary of State for Defence (Dr Andrew Murrison)]

The Government will respond to the Select Committee’s report by March, and will take careful note of the issues that it raises. I should point out, however, that way back in 2010 the national security strategy established cyber-security as a tier 1 priority, and that within a very few months it established the national cyber-security programme, which involved expenditure of £650 million over 10 years. I was delighted to note—without being complacent—that the Economist Intelligence Unit recently ranked the UK at No. 1 in terms of preparedness for a cyber attack.[Official Report, 5 February 2013, Vol. 558, c. 3MC.]

[Mr Jim Murphy (East Renfrewshire) (Lab)]

We all welcome the number of councils that have signed up to the community covenant, which will help to ease the transition from military to civilian life. This morning I was in Dagenham with the council leader, Liam Smith, to launch Labour’s campaign for a veterans champion to be appointed in every council so that service leavers have a single point of contact when they need it. Will the Minister commit the Ministry of Defence to a campaign to encourage the appointment of a forces champion in every local authority in the country, regardless of politics?

[The Minister of State, Ministry of Defence (Mr Mark Francois)]

I accept that the proposal is well meant, and I have already met some Labour MPs to discuss it. The actual implementation of the community covenant at ground level is a matter for individual councils, but, as the right hon. Gentleman may know, we have encouraged all councils—within the freedom that they have—to appoint armed forces champions, hopefully at senior level, to champion the needs of the armed forces and the veterans community in those local authorities. I am not averse to the suggestion, but the fact is that most councils are already implementing it.

[Nick de Bois (Enfield North) (Con)]

T2. The Minister may be aware that last Thursday an exceptional debate on dementia took place in this House, with the consensus being that cross-government working must play its part in helping to meet this challenge of dementia. Will he assure me that the Ministry of Defence will play its part in helping us to meet that challenge?

[Mr Francois]

Almost one in 10 adults in this country is an armed forces veteran, so clearly the increasing prevalence of dementia has implications for those veterans, too. As I have said in response to other questions, we work very closely with our colleagues in the Department of Health. They have primary responsibility for dealing with this challenge, but of course we also work closely with armed forces charities—the Royal British Legion and many others—to try to provide bespoke services for veterans who are dealing with this challenge in their life.

[Mr William Bain (Glasgow North East) (Lab)]

T8. Last week, 1.2 million people lost their entitlement to all or part of their child benefit. Can the Minister say how many people in the armed forces are affected by that change? Will he assure us that every single member of the armed forces has been notified that they would lose all or part of their child benefit?

[Mr Robathan]

I think we all regret any reduction in benefits. In the same way that members of the armed forces, such as myself—or my wife, more accurately—are losing child benefit, so we will all lose child benefit if we are paid the relevant amount. I am surprised that the hon. Gentleman should imagine that members of the armed forces are so ignorant of what is happening in the world that they need to be specially told. They are sensible people who can stand on their own feet and they do not need to be patronised by him.

[Nicholas Soames (Mid Sussex) (Con)]

Will Ministers join me in paying tribute to the service provided by the defence attachés across the world and to the very important contribution they make to defence diplomacy? Do Ministers agree that defence attachés also have a vital role to play in conflict prevention? Will the Minister make a short report to the House on how that work impinges on their other duties?

[Dr Murrison]

My right hon. Friend is absolutely right about this. In the short time I have been a Defence Minister, I have had the privilege of seeing the work of defence attachés in a number of countries and challenging situations. He can be assured that the Government recognise the importance of defence attachés and defence sections. He can also be assured that they will be at the front and centre of the forthcoming defence engagement strategy, which will be the blueprint for how the Government intend to take forward the extraordinarily important things that the attachés do, and the soft diplomacy in defence deliverables they are able to achieve. They will be absolutely at the front and centre.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Ministry of Defence reports in 2006, 2007, 2009 and 2012 showed that the majority of women in the armed forces were subject to unwarranted sexual harassment. Such harassment creates a climate in which rape and sexual assault can be prevalent; it creates a climate for these things to take place. What steps is the MOD taking to protect women in the armed forces?

[Mr Francois]

We take this issue extremely seriously. I know that the hon. Lady knows a lot about it, and I hope that she will not mind my mentioning to the House that she and I met in my office last week for a little over an hour to talk about it in detail. I have had meetings with the Provost Marshal (Army)—the head of the Royal Military Police—to talk about the issue; he was also present at our meeting. I have also had meetings with people such as the chief constable of the Ministry of Defence police. So we take this issue very seriously. We absolutely do not tolerate any offences of this kind. When any are reported, they will be most thoroughly investigated. As the hon. Lady knows, we have also been running awareness campaigns to encourage servicemen and women who come across any offence of this type to report it immediately, so that appropriate action can be taken.

[Several hon. Members]

rose—

[Mr Speaker]

Order. May I gently say to the House that if we are to get through the list, which I would very much like us to do and as we usually do, we now need short questions and short answers?

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

T3. I congratulate the Secretary of State and his ministerial team on the efforts to balance the books, considering what they inherited from the previous Government. That approach is being adopted by the Prime Minister on EU budgets, so will the Minister update the House on the cost and efficiency of the European Defence Agency?

[Dr Murrison]

My hon. Friend will be delighted to know that at the last EU defence ministerial in Brussels, the United Kingdom stood alone in insisting on a freeze in the European Defence Agency budget for the third year in a row. The people of this country would think it perverse if we were to make the necessary cuts in defence in this country and then proceeded to vote for an increase in the budget for the European Defence Agency.

[John Cryer (Leyton and Wanstead) (Lab)]

Further to the question from my hon. Friend the Member for Ilford South (Mike Gapes), is the Minister aware that there is a strong public perception that we are seeing a serious escalation in Britain’s role in Syria? Will he assure the House that we will not see any British troops in front-line roles in that country at any point?

[Mr Robathan]

We would need a legal basis to intervene in Syria. The humanitarian situation there is appalling, but we would need a legal basis and a clear opposition with whom to work. At the moment, there is no clarity, although we have recognised the National Coalition. We are waiting to see how the international diplomatic and political efforts work as we would rather see a political and diplomatic solution than a military one.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

T4. May I preface my question by saying that my younger brother is a defence mental health professional? Is the idea that has been around that all serving personnel should have mental health assessments and training being progressed and what progress has been made on it?

[Mr Francois]

I have been briefed on this specific issue by Professor Simon Wessely and his team at King’s college London, who are internationally renowned as experts in this field. They are researching this specific issue and we are awaiting the outcome of that research. I know you want brief answers, Mr Speaker, but the professor was knighted for his public service in the new year’s honours list and we most heartily welcome that.

[Phil Wilson (Sedgefield) (Lab)]

In July 2012, a memorial to the Durham Light Infantry was unveiled at the National Memorial Arboretum in Staffordshire. The Northern Echo and veterans of the DLI have launched a campaign for a similar memorial in the DLI’s home county. Will the Minister support that campaign and say what else the MOD can do to ensure a fitting memorial can be unveiled to the DLI in County Durham?

[Mr Francois]

I pay tribute to the proud history of that regiment. I visited the National Memorial Arboretum, but I cannot say whether, when I was there, I visited that specific memorial. As the hon. Gentleman knows, there are about 200. By tradition, the MOD does not pay for war memorials—that has been a tradition for many years. They are paid for by public subscription, but if the DLI, its veterans and others manage to raise the money for that memorial, I promise I will come and visit it.

[Fiona Bruce (Congleton) (Con)]

T5. How can local organisations such as the admirable Congleton charity the Listening Out Loud Foundation, which has just opened its first home for seven ex-servicemen, obtain broader support? It is working with Cheshire East council and hopes to obtain agreement this week for another home. Is that not an excellent example of partnership working in this field?

[Mr Francois]

You want brief answers, Mr Speaker: yes.

[Pat Glass (North West Durham) (Lab)]

Will the new state pension arrangements that will be announced today and implemented in 2017 mean that a member of the armed services who is 13 years from retirement today will have to contribute for nine years at the higher level but not receive the state pension?

[Mr Francois]

We are working on the details of armed forces pension scheme 15 at the moment. We are still working on some of the fine detail, but I can already say—[Interruption.] Yes, I know, but we are still working on some of the fine detail for its implementation when it starts in 2015. I can already say that the Forces Pension Society has described the new pension as

“as good as it gets”.

[Alec Shelbrooke (Elmet and Rothwell) (Con)]

T6. The Wetherby and district branch of the Royal British Legion in my constituency works hard to enable the reintegration of ex-personnel. What measures are the Minister and the Department taking to ensure that there is the necessary support for our men and women so that they can enjoy the quality of life they deserve after leaving the forces?

[Mr Francois]

We work very closely with the Royal British Legion and many of the other service charities, such as Help for Heroes, Veterans Aid—a whole range of them—to try to do the best between ourselves and the charitable sector for veterans who have served in our armed forces. These are exceptional people who have done so much for their country and it is right that we support them appropriately.

[Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)]

On Wednesday 9 January I asked the Ministers present whether they had met and discussed with the Secretary of State for Work and Pensions the effect of the under-occupancy penalty in relation to housing benefit for service personnel and their families. The Minister’s response was that no discussions had been held with the Secretary of State for Work and Pensions. Is this state of affairs due to the Secretary of State for Work and Pensions refusing to meet, or has no request for a meeting been made by the Government’s defence team?

[Mr Francois]

I think the hon. Gentleman will find that the Secretary of State for Work and Pensions is a former regular officer, so I think he understands as well as anybody the needs of our armed forces.

[Simon Wright (Norwich South) (LD)]

T9. Ministers will be aware of the great potential of Norfolk’s RAF Marham as a base for the joint strike fighter. Will they update the House on the timetable on which basing decisions will be made?

[Mr Robathan]

I will. As, regrettably, the decisions on the basing review have been delayed because of the autumn statement, we very much hope to announce the basing review soon and I shall make sure that the hon. Gentleman knows what the results are.

[Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)]

Medical analysis shows us that reservists are more susceptible than regulars to post-deployment mental health problems and post-traumatic stress disorder. What improvements are being made specifically to post-deployment care for reservists?

[Mr Francois]

There was a time a while ago when reservists returning from theatre did not go through a full decompression package and did not get the full mental health briefing when they returned from theatre. We have now altered that so that reservists do go through the full decompression package and do get a full mental health briefing when they come back from theatre. I will not go into the point about who was in charge when some of these deficiencies existed.

[Jeremy Lefroy (Stafford) (Con)]

T10. What discussions has my right hon. Friend had over how the Staffords’ name, traditions and role as armoured infantry will be retained in the Mercian Regiment?

[Mr Francois]

Our policy is that where there are changes in the order of battle, it is very important that history and traditions of noble regiments are properly acknowledged. In the first instance we look to the regimental councils to agree among themselves appropriate proposals to do this. I understand that the Mercian regimental council has come up with proposals that are going through an approvals process. Providing they are reasonable, which we think they are, we will be happy to endorse them.

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

If the UK Government are to meet the costs of the C-17s for the Mali operation, will the Minister identify which Government Department will meet those costs?

[Mr Robathan]

I am afraid I cannot answer that question. Omniscient though I may be, I do not know the answer, but I will write to the hon. Gentleman and let him know.

[Peter Luff (Mid Worcestershire) (Con)]

For the third time of asking at three successive Defence questions, may I ask the Minister when we can expect the publication of the very important but long-delayed audited defence equipment plan?

[The Parliamentary Under-Secretary of State for Defence (Mr Philip Dunne)]

Shortly.

[Mr Speaker]

The preservation of his good humour on the part of the hon. Member for Mid Worcestershire (Peter Luff) is remarkable in the circumstances.

[Nic Dakin (Scunthorpe) (Lab)]

May I thank the Minister for agreeing to meet me and the hon. Member for Gainsborough (Mr Leigh) to discuss the future of the Kirton in Lindsey base? Does he agree that where communities have had long-standing historic relationships with the military in their area, it is crucial that the Ministry of Defence has proper discussions about the future?

[Mr Robathan]

We are very keen to maintain good links between the armed forces and communities. I entirely agree with the hon. Gentleman and I look forward to meeting him shortly, when I hope we can come to a sensible agreement on the matter.

[Mr Speaker]

Last but not least, I call Stephen Gilbert.

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

Thank you, Mr Speaker. NATO figures show that Germany, Spain, Italy, the Netherlands and many other alliance countries are spending less than 2% of their GDP on defence. What is the Minister doing to make sure that all alliance countries pull their weight?

[Dr Murrison]

The hon. Gentleman is quite right. Only three countries in NATO spend the target 2% of GDP on defence—Greece, ourselves and the US. This point becomes particularly important since the announcement in January last year by the US President about his change in posture. The hon. Gentleman can be certain that at NATO ministerial meetings we will make the point time and again that we cannot have the umbrella that NATO gives us if we do not underwrite the cost.

Attacks on Civilians (Burma)

Monday 14th January 2013 Commons Chamber

15:34

[Valerie Vaz (Walsall South) (Lab)]

(Urgent Question): To ask the Secretary of State for Foreign and Commonwealth Affairs if he will make a statement on the Burmese army attacks on civilians in the Kachin state.

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)]

I thank the hon. Lady for her question.

Conflict between the Kachin independence army and the Burmese military has been ongoing in northern Shan and Kachin states since the breakdown of the ceasefire agreement in June 2011. There was an upsurge in violence in November and December 2012. As the Minister of State, Foreign and Commonwealth Office, my right hon. Friend the Member for East Devon (Mr Swire), said on 3 January, the British Government are deeply concerned by reports emerging from Kachin state of an escalation in hostilities, including the use of Burmese military helicopters and aircraft against Kachin independence army positions, including in areas around the state capital and Laiza. These tactics represent a marked escalation and pose a significant risk of civilian casualties. Indeed, we received on 13 and 14 January unconfirmed reports that a small number of civilian casualties had resulted from the fighting.

The British Government have been encouraged by the reforms made by the Burmese Government of President Thein Sein over the past 18 months. We have therefore adopted a policy of constructive engagement, but we have been clear that progress on ethnic reconciliation must remain the highest priority. The situation in Kachin is increasingly serious and could present a threat to such wider reforms.

In the past hour and a half, I have spoken to our ambassador in Rangoon. Earlier today he met one of the key Kachin civil society leaders to discuss the situation on the ground.

My right hon. Friend the Minister of State visited Burma from 12 to 15 December, raising our concerns over the situation in Kachin with the Burmese Minister of Defence and Minster Aung Min, the lead Government negotiator for the peace process. The Burmese Government reconfirmed their commitment to seeking a ceasefire with the Kachin independent army at that point.

During my right hon. Friend’s visit, he made clear to the Burmese Government three points, which remain especially pertinent given recent events. First, the British Government call for an immediate cessation of hostilities. President Thein Sein has called for the fighting to stop, saying that the Burmese Government

“does not want to pass on the conflict to the next generation.”

It is imperative that military commanders in Burma heed their President’s call for an end to hostilities.

Secondly, there must be unhindered humanitarian access to conflict-affected areas. In response to increased need, the Department for International Development announced in December 2012 an additional £1.5 million of humanitarian support for people displaced by fighting in Kachin and neighbouring states, bringing our total humanitarian aid contribution to the conflict in Kachin to £3.5 million and supporting 27,500 people to access food, shelter and clean water.

Thirdly, we call for both sides to return to the negotiating table and make renewed efforts towards a lasting peace. All sides, including the Kachin independence army, must come to the negotiating table and make renewed efforts to work towards lasting peace.

As I am sure the House would expect, we will continue our dialogue with both sides, and we stand ready to respond to any request for support in any mediation process between them.

[Valerie Vaz]

I am grateful to you, Mr Speaker, for allowing me to ask the urgent question, as well as to the Minister for coming to the House.

The Minister referred to the fact that today, at 8.15 am Burmese time, a 15-year-old boy and a pastor were killed by a direct hit. Will he again raise with the Burmese Government the need to stop any firing on civilians, because BBC Asia has confirmed that these attacks are unprovoked? Will he also raise with the Burmese Government the fact that humanitarian aid is not getting through to 75,000 displaced people? He talked about DFID money, but will he ensure that any British aid is getting to the people who need it most? Given that the EU has suspended sanctions, will the Minister suggest to his EU counterparts that sanctions be reinstated if such direct action on civilians does not stop?

Has the Minister discussed the crisis with the Chinese Government? The planes are of Chinese origin and the gunships are Russian, so will he undertake to say to both Governments that the raids must stop?

Given that the Kachin state reached an agreement with the Burmese Government in 2011, and that other minority groups have also formed agreements with them—that is all being put in jeopardy—will the Minister take steps to ensure that the United Nations calls all parties round the table for a proper constitutional settlement, and perhaps a second Panglong conference? Finally, will he ask the Prime Minister to put Burma on the agenda at the G8 summit, when we have the presidency, so that we can hear the voice of the peacemakers, and will he report to the House?

[Alistair Burt]

I thank the hon. Lady for her questions. I repeat again, I am sure on behalf of the whole House, our deep regret at any civilian deaths. Our determination is to seek contact with all sides and that the hostilities cease altogether, wherever they are directed. But, of course, it is particularly upsetting if civilians are involved, and we have indeed made that clear to the Burmese authorities.

It is very important that UK aid support is getting through. We work with aid agencies on the ground, and I understand that the International Committee of the Red Cross is able to operate and get there, but, naturally, when individual circumstances arise and difficulties are created on the ground, that will not always be the case. However, the hon. Lady is absolutely right, and we are equally determined to make sure that that aid gets through.

Our position on sanctions is very clear. The sanctions in relation to Burma have only been suspended; they have not been lifted. Could they be reimposed? Oh, yes, they could. Whether or not the Foreign Affairs Council in April moves to lift rather than suspend them will depend on the progress that Burma is making in relation to the challenges it has been set in dealing with ethnic conflict and the political process. I do not doubt for a moment that the Burmese Government are well aware of the conditions that are likely to attach to any further progress in relation to sanctions.

The Chinese Government have already been contacted by the United Kingdom in relation to how it deals with those who flee across the border, whom the Chinese tend to see as economic migrants as opposed to our own definition, which would be those seeking to escape the conflict. This gives us an opportunity to engage directly with the Chinese Government. I genuinely do not know whether their participation through types of arms has been raised, but I note what the hon. Lady says and will raise that with my right hon. Friend when I next speak to him.

On 2 January, the UN Secretary-General called for the fighting to stop and for access to be guaranteed to the delivery of aid to vulnerable communities, including those displaced by violence. The UN Secretary-General’s special adviser, Vijay Nambiar, has recently returned from Burma. We hope that he will have the opportunity to brief the Security Council on his return very quickly and our concerns will be made known to him, but we will keep in regular contact.

I am afraid that it is rather too early for me to say what might or might not be on the agenda of the G8 summit. Let us hope that by that stage we will all have seen the progress in Burma that we wish to see.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I appreciate that the Minister had a telephone conversation this morning with the ambassador, but, as I asked in the House on Thursday, what specifically have the Government done to respond directly to the concerning reports coming from the Kachin border over the Christmas period? How will the Government make it crystal clear to President Sein that he cannot hold out the hand of peace and reform while allowing direct attacks on civilians?

[Alistair Burt]

As I sought to make clear, we have been very disturbed at the increasing violence in the state. We know that there is frustration on all sides with progress on the issues affecting the Kachin people and the Burmese Government. But a degree of patience has been called for, and whatever difficulties there are cannot be resolved by resort to physical violence. I can assure my hon. Friend that the ambassador, and my right hon. Friend the Minister of State in his recent visit, made very clear the UK’s concerns. He can also be assured, from my conversation with the ambassador this morning, that these conversations are taking place at the highest level and with great urgency. My hon. Friend is right: continuing progress in Burma on the relief of sanctions and the normalisation of relations is entirely dependent on how Burma handles its present responsibilities, and the world is indeed watching.

[Jonathan Ashworth (Leicester South) (Lab)]

The Minister will accept that we welcome the reforms in Burma—I am sure we all agree on that—but does he agree that we must send the strongest message to Burma that it has to recognise the diversity of its people, whether that is minorities in Kachin or granting citizenship to the Rohingya in Rakhine? Will he give us more details of the work the UK Government can do at UN level to support ethnic reconciliation in Burma?

[Alistair Burt]

The hon. Gentleman is absolutely right. Ethnic reconciliation is a key factor in the return of normalisation of relationships between Burma and the rest of the world. We are engaged bilaterally and through the UN and others in doing whatever we can to provide support, encouragement and, where possible, examples of reconciliation within the United Kingdom to assist efforts being made in Burma.

The hon. Gentleman rightly mentions the Rohingya people. As he may know, the latest position is that the commission of investigation set up by the Burmese Government is hoping to report in March. There have been no further flare-ups since the violence in October. That might suggest that the political process is being taken seriously and has some opportunity to succeed, but it will not do so unless it tackles the question of citizenship, which the hon. Gentleman mentioned and on which the whole House is agreed.

[Bob Stewart (Beckenham) (Con)]

As the Minister has stated that the International Committee of the Red Cross can apparently get through, are personnel and staff from our own Department for International Development able to work either alongside it or under the aegis of the ICRC on the ground?

[Alistair Burt]

I specifically asked this morning about the engagement of international aid agencies. As my hon. Friend will know only too well, the circumstances of engagement on the ground depend very much on security and everything else, but I was assured that international agencies are still working there. I am not currently in a position to say whether that includes our colleagues in DFID working alongside the ICRC or working to provide support, but as a result of my hon. Friend’s question I will make sure that the question is asked again. Ensuring that this aid is delivered directly is absolutely crucial in the circumstances.

[Mr John Spellar (Warley) (Lab)]

As my hon. Friend the Member for Walsall South (Valerie Vaz) highlighted, Labour Members have been deeply concerned by the escalation of tensions in Kachin state over the past month and by the reports overnight that three civilians have been killed and at least four wounded—attacks that must be condemned. Despite how far Burma has come over the past year, the violence in Kachin state serves as a reminder to the international community of the further progress that it must make. Does the Minister think that the UK has put sufficient pressure on the Burmese Government over the past year to bring an end to the conflict?

I thank the Minister for his report on the discussions held by the Minister of State, the right hon. Member for East Devon (Mr Swire), but will he tell us in a bit more detail what contacts the Foreign Office has had with colleagues in the EU and the UN to concert international action?

There are disputed reports about the Government’s convoy to Kachin in December, which the rebels claimed contained ammunition. Has the Foreign Office been able to verify these claims and whether its destination was the army base?

There are also reports that Laiza residents are having to dig trenches and build shelters to try to protect themselves from the military’s attacks. Has the Foreign Office discussed with DFID and with international counterparts what immediate assistance can be provided to protect civilians?

As the Minister will be aware, the Chinese Foreign Ministry has called on the Burmese Government and the Kachin independence army to resume negotiations, and their spokesman has confirmed that

“China has already taken measures necessary to step up control over the border area and protects the lives and property of the border people”.

Has the UK made contact with China to discuss these more recent developments and the plight of Kachin civilians fleeing the violence? Does the Minister have an indication of what these “measures” constitute? Human Rights Watch has reported that China has in fact forced Kachin refugees back to Burma and was denying international humanitarian agencies access to the refugees in Yunnan province. What assessment has the FCO made of the treatment of the displaced and the options for those now escaping the violence? Will the Government work with the international community to ensure that Kachin civilians can access humanitarian support?

The immediate priority must be the welfare of those civilians and an end to the attacks, so what, in the Minister’s assessment, are the prospects for a ceasefire? Will the Government make it categorically clear that we will not tolerate air strikes and helicopter gunship attacks and that we will support the call on 2 January from the UN Secretary-General to the Burmese authorities to desist from any action that could endanger the lives of civilians living in the area?

[Alistair Burt]

I thank the right hon. Gentleman for his questions, which covered a range of areas that obviously concern the House significantly. We share with him and the House a sense of condemnation following the deaths of civilians, as well as their concern about the resurgence of hostilities. We have indeed made it clear to the Burmese authorities that there should be an immediate ceasefire and that hostilities should stop. There is no possibility of the political reconciliation process being able to take place until that happens. We therefore continue to make representations to both sides, because this is a complex issue that has many sides and we want to make representations to ensure that they play their part and that, when hostilities cease, there is a proper opportunity for the necessary political dialogue.

The right hon. Gentleman asked whether there had been sufficient political persuasion by the United Kingdom over the past year. My sense of the evidence of the progress that has been made comes from the visit of the Minister of State and the contacts that he has, as well as from the obvious progress that has been made in Burma in a variety of ways to ease the situation in different areas. However, as soon as one situation flares up again, we have to question that progress, and the House can be assured that we will continue to exert pressure.

It is obvious that progress must continue to be made if Burma is to resume its place among the rest of the nations. It understands that very well, and the forthcoming Foreign Affairs Council in April will accordingly be of huge significance. We will certainly expect to see further progress by then. In relation to that, contact is of course constantly maintained with partners in the European Union and the United Nations, and we certainly supported the calls made by the Secretary-General at the beginning of the year for a rapid end to hostilities. The right hon. Gentleman referred to the claims made by the KIA. I have received no details of their verification at this stage. He also asked about the preparations for a military attack, and that does indeed form a vital part of the consideration about humanitarian relief and assistance in those circumstances. That matter has indeed been raised.

As I said in answer to a previous question, we are well aware that China has been returning refugees because it classes them as economic migrants, rather than as people fleeing conflict, which would appear to the United Kingdom to be the more obvious way of classing those who are fleeing across the borders. We do indeed make representations to China that it should act responsibly and provide proper humanitarian care to those who are seeking relief from the violence and conflict. None of that will have any impact, however, unless work is done between the KIA and the Burmese Government to settle the issue. We will continue to make representations to the Chinese, but settling the issue is very much the most important thing.

The right hon. Gentleman asked about the prospects for a ceasefire. We would hope that, following the international pressure that has been brought to bear as a result of the incidents of recent weeks, and particularly those that took place over the weekend, the Burmese Government will take note of how seriously those incidents are being seen in foreign capitals around the world, notwithstanding the fact that the greatest tragedy is that being inflicted on those who are suffering the violence. That violence must cease so that a proper political process can take place.

[Martin Horwood (Cheltenham) (LD)]

European sanctions on Burma remain in place, but it is welcome that reconsideration of the suspension in April will take into account these worrying reports from Kachin state. The arms embargo also remains in place. Does the Minister agree that, for the foreseeable future, that should remain the case?

[Alistair Burt]

Yes.

[Mr Speaker]

I am grateful to the Minister and to colleagues.

State Pension Reform

Monday 14th January 2013 Commons Chamber

15:53

[The Minister of State, Department for Work and Pensions (Steve Webb)]

With permission, Mr Speaker, I would like to make a statement on state pension reform. I am pleased to announce that, as part of the coalition Government’s mid-term review, we shall be pressing ahead with our plans for a single, simple state pension, reassuring people that it pays to save, and making it easier for them to take responsibility for their own retirement planning.

Before I set out our plans for the future, I want to say a few words about the pensioners of today, who are and will always remain a priority for this Government. Within months of coming to power, we restored the earnings link with the basic state pension—something for which campaigners had been calling for 30 years. As a result, from April this year the basic state pension will reach its highest level as a percentage of average earnings for two decades. I should add that, on a freezing day such as this, the House will also welcome the fact that we have reversed the planned cuts in the cold weather payments, which are of so much value to poorer pensioners.

Last month was the 70th anniversary of the Beveridge report. The original idea from Beveridge was for a single, simple, decent state pension, paid at the end of a lifetime of national insurance contributions. We have drifted a very long way from that blueprint.

We now have two state pensions, entitlement to which arises under different terms, uprated according to different rules, with complex arrangements for people who are divorced or who become widowed. There are also special arrangements for married women that relate to a time when the prevailing wisdom was that men needed a pension and women needed a husband.

The state earnings-related pension scheme—often referred to as SERPS—is extraordinarily complex, with variable amounts paid out in retirement that no one is properly able to predict. This position is made even more complex by a system known as contracting out, whereby people in workplace pensions are able to opt out of the state second system.

The complexity in the current system means that, when it comes to telling people what they might get from the state, the Government have to write letters that include paragraphs such as this:

“At some time you chose to ‘contract out’ of the additional state pension by paying into an Occupational or Personal Pension. Because of this we make a contracted-out deduction (COD) from the maximum amount of additional state pension that we would otherwise pay you. We make changes every year to the additional state pension and the COD, but this may be at different rates. This means that your additional state pension could be different from the amount we have estimated and could actually be”

zero. This is nonsense.

Millions of people do not receive enough to live on from the two state pensions combined, so they rely on a third system of mass means-testing known as the pension credit. Those with small amounts of their own savings can find themselves little better off than others with no savings at all, and thousands more fail to claim the money they would otherwise be entitled to, some because they find it demeaning to do so. We can and must do better.

In 2011 we published our Green Paper, “A state pension for the 21st century”, and had more than 100 organisations and 1,600 individuals respond. There was a consensus that the state pension system needs to be simplified and strong support for the option of a single tier.

Today, the Government are publishing their plans so that the workers of today retire on a single, simple, decent pension, very much in line with the Beveridge model, but updated to fit with the modern age. This is a new pension system that reflects the fact that people are living longer and will be drawing their state pension at a later point in their lives, and that working patterns and family life have changed, with women much more likely to be working and becoming entitled through their own national insurance contributions. Working lives are more fragmented and people need to take more personal responsibility when it comes to planning and saving for their retirement.

Under our plans, someone who starts work under the new single-tier rules would become entitled to just one state pension set above the level of the basic means test. The full rate will be payable for 35 qualifying years of national insurance contributions. This reflects the fact that we are combining two pensions: a basic pension payable for 30 years and a state second pension based on national insurance contributions over a working life of up to 50 years.

Consistent with the current system, there will be credits for those who cannot pay national insurance because of caring responsibilities. Importantly, the new rules will be of particular benefit to many older women who have impaired pension records because they took time out to raise children during the 1980s and 1990s.

Every individual will qualify for a pension in their own right, with no complex rules about claiming pensions based on the NI record of a spouse. As the new single-tier pension will be set above the basic level of the means test, people who do the right thing by putting money aside during their working life will be far less likely to see it clawed back in retirement through the means-tested benefits system. This is particularly important in a world where millions of private sector workers are being automatically enrolled into workplace pensions, including many on lower incomes who will be saving for the first time.

The new system will be introduced in 2017 at the earliest. We need to let business know now that this is coming, but it needs time to adjust. When the new system is introduced, people will no longer become entitled to the state second pension, and so the whole complex system of contracting out will be abolished. Of course, national insurance contributions paid and that would, under the current system, have led to entitlement to a second state pension will be recognised. For example, when we introduce single tier, someone who retires in 2018 who has £160 in the current system will still get a pension of £160. Those workers who were previously contracted out will start to pay full national insurance contributions, like all other workers, but in return they will become entitled, potentially, to a pension at the single-tier level, rather than the much lower basic state pension today. For the vast majority of those people, the higher national insurance contributions that they pay will be more than offset by the higher state pension they receive.

The overall cost of the new system will be the same as that of the one it replaces. This is not a pensions giveaway for the next generation. A higher flat pension is affordable only because, in the long term, people will not become entitled to very large earnings-related pensions through the state system. In a world where everyone will be automatically enrolled into a workplace pension with a contribution from their employer, it no longer makes sense for the state to run its own separate earnings-related pension scheme. Higher earners are among those being automatically enrolled, with substantial employer contributions, so those who earn the most while they are working will continue to be the best off in retirement.

Later this week, we shall publish a draft Bill that will put our plans into law. I wrote to the Chair of the Work and Pensions Committee earlier today, asking whether her Committee will carry out pre-legislative scrutiny of our plans. I hope to receive a positive response to that request.

The White Paper also contains details of our plans for a more structured framework within which to consider future changes to the state pension age. However, I can confirm that there will be no further changes announced during the life of this Parliament. The plan is to review state pension age once every five years, starting in the next Parliament, based around the principle of maintaining a given proportion of adult life in receipt of state pension, as suggested by the Turner commission. Each review will be informed by analysis from the Government Actuary’s Department, with an independently led body reporting on wider factors that should be taken into account.

Our analysis shows that more than 10 million people who are at work today are not saving enough to generate the sort of income that they want to receive in retirement. The combination of a single, simple, decent state pension and the right to a workplace pension with a statutory minimum contribution from the employer will mean that, for the first time, there will be a firm foundation for retirement for the work force of today. I commend this statement to the House.

16:01

[Gregg McClymont (Cumbernauld, Kilsyth and Kirkintilloch East) (Lab)]

I thank the Minister for advance sight of the statement, although it was not as advanced as that of some newspapers over the weekend. However, he did have the decency to brief me as our paths crossed in a TV studio this morning.

Today was not supposed to be about pensions at all but about the unveiling of the Government’s flagship child care proposals, which took centre stage at the coalition relaunch last week. Unfortunately, the latest bout of coalition unity did not last even a week. The Government cannot agree on child care, but the Prime Minister was desperate to have something to talk about this morning other than Europe, so—voila—we have the pensions White Paper.

In all seriousness and in respect of the Minister’s commitment to this proposal, we will take the White Paper very seriously. However, I sound a cautionary note. The Government have form on pensions. We remember when the Government laid the 2011 Pensions Bill before the House. The Minister told the House that it was fair to all, but neglected to mention a huge unfairness. I talk, of course, of the targeting of women in their later-50s, who found that the goalposts for their retirement had been moved again at short notice. It took Labour’s digging to reveal that injustice and a Labour campaign to win Government concessions. There is therefore every reason to look closely at the detail.

The principle of a simplified state pension was laid down by the Turner commission and was supported by all parties. The Leader of the Opposition has reiterated our support for that principle. However, it is fair to note that Turner rejected an abrupt shift to a single-tier state pension, which is why the previous Labour Government adopted an evolutionary approach.

Even on my speed-reading of today’s White Paper, there will be heavy losers, steep cliff edges and significant costs if the proposal goes ahead as planned. For example, the briefing from the Government over the weekend was at pains to emphasise the women-friendly aspects of the measures. However, I want to ask the Minister directly about the 429,000 women born between 6 April 1952 and 6 July 1953. Is it the case that those 429,000 women will not qualify for the single-tier state pension, and yet men who were born between the same dates will?

Let me dig a little deeper. The Minister referred to existing pensioners. Is it the case that this proposal excludes all existing pensioners and all those who intend to retire before 2017? If so, what is his message to the 15 million or 16 million people, by my calculation, who will not be eligible for the new pension? How many pensioners does he estimate will remain on £107 a week rather than £144?

May I ask the Minister about the 1.4% national insurance tax rise on 6 million workers? As I understand it, the money raised by that tax hike will not be reinvested in the new state pension but will flow straight into Treasury coffers. If that is indeed the case, how much money will that tax grab raise, and why is the money not being reinvested in the new state pension?

More narrowly, will the de minimis 10 years of contributions be part of the process by which public sector workers and private sector defined-benefit contracted out workers will participate in the new pension? Specifically, will they need at least 10 years of contributions to the new state pension to get any pension whatever?

[Steve Webb]

indicated dissent.

[Gregg McClymont]

The Minister shakes his head, which is important. I would appreciate it if he referred to the matter in his response.

We also seek clarification on what the abolition of the state second pension means for savers. Will the state second pension part of people’s accrued rights be uprated by CPI, not under the triple lock that will apply to the single state pension? That is an important question. Furthermore, how many savers currently pay into the state second pension, and how many of them will receive a lower state pension than they would have done without this reform? In other words, how many losers will there be among those who currently save in the state second pension?

The Government claim to have learned from the 2011 Pensions Bill. They say, and have briefed widely over the weekend and this morning, that the big winners in the new system will be stay-at-home mums. Some context is needed here. The Labour Government put female pensioners at the heart of their pensions policy. Most importantly, they massively reduced the number of years of contributions that both men and women needed to get a full state pension. It was reduced enormously to 30 years from 44 for men and 39 for women. The Government propose to put it back up to 35 years. What will be the impact of that five-year rise in contributions? Specifically, will it reduce the number of pensioners eligible for a full state pension, on Department for Work and Pensions estimates? That is an important question.

May I ask the Minister about the rising state pension age, which he mentioned towards the end of his statement? The Government seem to propose a new mechanism for increasing the state pension age. I have two questions about that. First, the difference in life expectancy between a manual worker and someone doing a non-manual job will play itself out both in the amounts saved in the new state pension and in the fact that non-manual workers will get it, on average, for much longer than manual workers. How will the system be made fair, given the difference in life expectancy, with a rising state pension age?

The second question is related to that. What if manual workers in particular cannot work for as long as any new mechanism sets out that they should when the state pension age is raised? If they cannot do hard, physical labour, how will that affect the Government’s claim that there will be a massive reduction in means-testing in the new system?

Those are only some of the questions that face us as we consider the detail of the White Paper. I suspect that the argument will not disappear overnight, because there is much detail to be considered. I hope that the Minister will give us some provisional answers on important matters that are affecting our constituents and his own.

[Steve Webb]

I thank the hon. Gentleman for what I would characterise as his broadly constructive response to my remarks. I welcomed his comment on the television this morning that

“the Labour party supports the principle of a flat-rate state pension”.

I welcome that because pensions are for the long term, and with two coalition parties united in support for this reform and support in principle from the official Opposition, we have a chance of stability in pensions policy, which would be good for all.

The hon. Gentleman says that the Government have form on pensions, and that is a fair cop: we restored the earnings link after 30 years, we ruled out 75p increases, and last year we introduced the biggest ever cash rise in pensions. He asked about women in their late 50s, many of whom are the very women who were penalised for time spent at home with their children. Although they got some protection on the basic pension, they did not get it on SERPS and the state second pension. The Government are putting that right for the very group of women about whom he asks.

The hon. Gentleman asked about women born in certain months, and the equivalent men. The changes are based on state pension age, and as he knows, that is different for men and women so the implications are also different. The April 2017 change is based on when people’s state pension age falls. He asked about people who “retire” but that is not really the right word—it is all to do with someone’s state pension age and whether it is before or after the change.

The hon. Gentleman asked how many pensioners are on £107. To be clear, someone who has worked in the public sector throughout their life—a teacher, for instance—would be on £107 because they contracted out of the other bit. In our system, from day one they would also be on £107 because we will take account of past periods of contracting out. Future service in the public sector at the full NI rate will add years to that £107. It is not a cliff edge; the exact day before or day after for those people is the same, but they can then work off that contracted-out deduction.

The hon. Gentleman asked about the national insurance rebate and—interestingly—suggested that we spend it on pensions. That is obviously a matter for a future Chancellor, but given that the public sector, the NHS and schools will pay significantly more national insurance, it would be interesting to know whether the hon. Gentleman’s position is that that money should go from the NHS and schools into higher state pensions. He asked about the 10-year de minimis. Let us be clear that we are not saying 10 years in the new system—the requirement is 10 qualifying years in someone’s lifetime. That is because there are backpackers who do a couple of years of bar work and 40 years later we are paying them a state pension for another 20 years. The sorts of people who would be excluded are those who come for a few years, do not really have any skin in the game and pay just a few years of national insurance. They will not get a pension—that is how we save money to spend on pensions.

On state second pension uprating, as I mentioned in my statement, for someone on £160, the first £144—at least earnings—will be triple locked in our White Paper and the balance will be linked to the CPI as SERPS is currently. The hon. Gentleman asked about people who pay into the state second pension, and except for about 5 million public sector workers and a couple of million private sector workers, everybody else pays into the state second pension. He said they were all losers—obviously they will not accrue S2P, but they will accrue a bigger flat-rate state pension.

The hon. Gentleman mentioned the April 2010 changes to qualifying years which he described as an “enormous” reduction. That is, therefore, also an enormous cliff edge of the sort he accuses the Government of making, and there were virtually no transitional arrangements for that. Someone who retired a day before that enormous cliff edge got nothing, whereas someone who retired the day after got the benefit of 30 years’ contribution. There are precedents for such things. When the contribution years were set to 30, women’s state pension age was still 60. In our world, and in the future, it will be 65, 66 or 67, and it is hard to see why in a working life of 50-odd years someone should get a pension for 30 years of contributions. We are merging a pension with a 30-year rule with another pension with a 50-year rule, and we have 35 as a sort of weighted average.

Finally, the hon. Gentleman asked about differences in life expectancy. I gently point out, however, that when the previous Government legislated for a pension age of 66, 67 and 68, they did precisely nothing about differences in life expectancy. We are recommending an independent panel to look at the issue and advise the Secretary of State.

[Jane Ellison (Battersea) (Con)]

I thank the Minister for his statement. Does he agree that the task of tackling complexity is vital and that this arrangement seeks to address those many older pensioners who do not seek means-tested top-ups because it is too complex and they are often to dignified to do it?

[Steve Webb]

My hon. Friend is right. In every interview I have done today, we have had to spend about 20 minutes explaining how the current system works before we deal with the change. I welcome the fact that consumer organisations such as Age UK, although it has questions about the details, has warmly welcomed the principles of our reform.

[Dame Anne Begg (Aberdeen South) (Lab)]

I thank the Minister for his statement and for listening to the most recent report on pensions by the Work and Pensions Committee. When we looked at auto-enrolment, we said that a flat-rate state pension was important. On behalf of the Committee, I accept his invitation to conduct pre-legislative scrutiny.

The final outcome of the pension reform will, we hope, be a simple and easy-to-understand state pension, but already, from this afternoon’s exchange, it sounds as though getting there will be incredibly complicated. Will the Minister give us an idea of how long the transitional arrangements will be in place? I suspect that the Committee will spend a great deal of time analysing those arrangements to ensure that they are fair.

[Steve Webb]

I am grateful to the hon. Lady both for her Committee’s report calling for the state pension to be sorted out and for her willingness to undertake the scrutiny. We will work closely with, and support, her Committee in doing that. She is absolutely right: transition is the messy bit. With pension reform, it would be lovely to start with no history and a blank sheet of paper, but we cannot do that. The straight answer to her question, however, is that transition is particularly important for those closest to pension age, who will have a complex history and rights built up. For younger workers, it is straightforward: they will do the 35 years and get the £144. Transition is complicated and messy in the early years, but it quickly works its way through the system, and we have worked hard on the statements we will send to people. They will be clear and say, as it were, “Under the bonnet, the workings might be complicated, but you’ve got this so far. Do this many years, and you’ll get £144.”

[Graham Evans (Weaver Vale) (Con)]

Does the Minister agree that the current pensions system is not working and does not guarantee pensioners the financial security to which they are entitled? Will he confirm that the triple lock guarantee will still apply to the new single-tier pension, thus avoiding the 75p increase fiasco we saw under the last Labour Government?

[Steve Webb]

The current position is that we are obliged by law to uprate by at least earnings, and our policy is to go further and have the triple lock, as is mirrored in the White Paper. The legal position in the draft Bill will be at least for earnings uprating, but all our illustrative estimates in the White Paper are indeed based on the triple lock.

[Mr Frank Field (Birkenhead) (Lab)]

I congratulate the pensions Minister and the Secretary of State on delivering the White Paper against the restriction the Treasury imposed on them—that the reform be delivered at no extra cost. So that the House and the country can understand how successful they have been in driving a coach and horses through the restriction, might the Minister tell us the largest increase in contribution that any worker will face under his scheme?

[Steve Webb]

I enjoyed the right hon. Gentleman’s column in The Guardian today. He imagined that we would make this pension reform work by not making it contributory, but I hope that I have clarified for him that people will still need 35 years of contributions or credits to draw the pension. The straight answer to his question is that the rebate is 1.4% and applies to a band of earnings from the lower earnings limit of about £5,500 to the upper earnings limit of about £40,000. It is 1.4% of that band.

[Greg Mulholland (Leeds North West) (LD)]

I commend my hon. Friend for the biggest state pension reform for 50 years, but how will it tie in with the other big development, which is auto-enrolment in workplace pensions?

[Steve Webb]

I had the great pleasure of joining my right hon. Friend the Secretary of State at Asda this morning—when he caught up on a bit of his shopping—and meeting shop workers who had just been automatically enrolled by Asda. It was fascinating talking to them, because some were in the scheme already, but many were not. Those who had been auto-enrolled were going to stay in, and one said, “It’s not that much money. To be honest, I drink more than that in the pub over a month.” People are being brought into workplace pensions. We do not want them opening their newspapers and being told, “Don’t bother saving, because you’re just going to be means-tested.” We believe that we have dealt with that problem today, which will make auto-enrolment work as well as state pension reform.

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

The Institute for Fiscal Studies has said today that the proposals will mean

“a cut in pension entitlements for most people in the long run.”

I am also concerned that they touch on public sector pensions and other areas of devolved competence. Will the Minister ensure that his Department engages in constructive technical discussions with the Scottish Government on the transitional process?

[Steve Webb]

I have written to the devolved Assemblies and the Scottish Parliament about our announcement today. On the hon. Lady’s question about costings, let me say that for the next couple of decades or so we will be spending pretty much the same as now—it is within the same cost envelope—but we will be getting the bill down for younger workers by the middle of the century. It will not be down relative to today—the share of national income going on pensions will be substantially bigger than today—but it will not be rising quite as fast. We are ensuring that workers in their 20s will be automatically enrolled so that they have a savings culture as well as state pension.

[Nigel Mills (Amber Valley) (Con)]

I warmly welcome this announcement, and I think we will get to the right place. How long does the Minister expect that the current complex system will have to remain in place? Will we have to keep paying people pension credits for 40 years or more, or will there be a taper so that everybody will eventually receive the new pension?

[Steve Webb]

I am afraid that the taper is sometimes called the grim reaper. The process is that everybody who has already reached pension age by 2017 will have their rights under the current rules. I have every anticipation that those rights will be honoured for as long as people are in a position to draw them.

[Graham Jones (Hyndburn) (Lab)]

Could the Minister expand on people who have SERPS that sit with private pension companies? What will happen to those pensions? He says that some who have opted out into SERPS may not qualify for the single tier. How will he explain to people the relationship between those with SERPS who have a private pension and how they will qualify for the single tier? It sounds a little complex to me.

[Steve Webb]

At the moment, we have a two-tier work force: those who are paying full national insurance and drawing a basic pension and a SERPS pension; and those who pay a reduced national insurance, who just build up a basic pension. In the future it will be simpler: there will just be workers who pay national insurance and build up rights under the single tier. We have to honour the past and deal with its complexity, but going forward every year will be a year’s worth of single-tier pension—a thirty-fifth of £144 for everybody. Whether they were previously contracted in or contracted out, it will be the same for everybody.

[Paul Uppal (Wolverhampton South West) (Con)]

I welcome the statement. Out there in the real world my constituents are heartened by us in this place seeking to simplify an aspect of financial payment for once. In relation to young entrepreneurs and many of those who are self-employed, can the Minister assure me and the House that those who pay into the national insurance pot will, under the single-tier system, see full payment and full benefit from the contributions they make?

[Steve Webb]

I am grateful to my hon. Friend for mentioning the self-employed. At the moment, the self-employed build up rights under the basic pension—the £107—but not the equivalent of the £144. In our world, there are just people who pay national insurance, build up qualifying years and build up a pension. The self-employed are therefore potentially substantial beneficiaries of the new and simpler system.

[Sheila Gilmore (Edinburgh East) (Lab)]

Will the Minister confirm that workers currently in the private sector who contracted out may also see, in addition to having to pay higher national insurance contributions, either higher contributions towards their private pension or a reduction in benefits?

[Steve Webb]

Yes, the hon. Lady is right. We have talked to the CBI, the National Association of Pension Funds and major pension employers. They are clear that they do not simply want to take the national insurance rise on the chin; they want the freedom to adjust their private sector pension scheme in response. However, we have calculated that, even allowing for that, the bulk of people who are within 20 to 25 years of pension age will still get more back, from the extra national insurance and any reduction in their private pension, through the enhanced state pension than they have lost.

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

Does the Minister agree that a modern pension system needs to reflect the changes in a modern work force, and that what he is announcing today will help self-employed people, and women who have not been able to work and have a variable contribution record?

[Steve Webb]

Yes, the new system is designed to treat people as people, rather than as dependants. It removes the distinction between employee and self-employed, contracted in and contracted out. Given that these boundaries are somewhat permeable—people might be self-employed one year and part time the next and so on—this will streamline the system and make it easier for people to build up the 35 years they need.

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

Somebody mentioned the 75p increase earlier. The reason for that was that the previous Conservative Government broke the link and then it was related to prices, so let us be clear about that. Secondly, the problem with pensions actually started when the previous Conservative Government, in terms of industry, gave incentives to people to opt out of SERPS and into private schemes—that is how we got ourselves into this mess today. How many people will lose out under these proposals?

[Steve Webb]

We are publishing later this week, along with the Bill, a detailed impact assessment of the changes over a series of decades. In the White Paper we have published today, the hon. Gentleman will see a chart that shows that, for I think at least 35 to 40 years, a majority of people affected by the changes will gain rather than lose.

[Miss Anne McIntosh (Thirsk and Malton) (Con)]

I congratulate my hon. Friend on what the Government have achieved and seek clarification on two points. From which budget will the NHS and other public sector employers have to find the additional national insurance contributions? Are small employers in constituencies such as Thirsk and Malton being asked to increase national insurance contributions as well as contribute towards a private pension scheme?

[Steve Webb]

In answer to my hon. Friend’s first question, the NHS as an employer already pays the reduced rate of national insurance from its own resources; it will have an increased rate of national insurance. Obviously the Exchequer will have an increased revenue. It will be a matter for the Chancellor of the day to decide what to do with that increased revenue, but the NHS as an employer will pay more national insurance—that is a fact.

In answer to my hon. Friend’s question about small firms in her constituency, very few small firms run contracted-out defined-benefit pensions, so the only people paying increased national insurance will be those who are contracted out who run these special final salary schemes. We have allowed those schemes to adjust their rules to offset the cost if that is how they choose to proceed, but most small firms will not be affected.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

Crucial to these proposals is the notion that parents who take time off work to bring up children—stay-at-home mums—will register for national insurance pension credit in order to get their cumulative 35-year tally of contributions. However, surely the Government are not saying that the only way to get these credits is to apply for child benefit, because from 7 January not everybody has been eligible for child benefit payments. That would be ridiculously complex and confusing, would it not?

[Steve Webb]

There are two groups of people. First, those who are currently receiving child benefit that will cease because of the changes for people with higher-earning spouses will continue to get credits under this system—they are in the child benefit system with a zero award. For people who have their first child under the new regime, we already put information in what is called the bounty pack—which new mothers get—to encourage them to claim child benefit, not least because even if their spouse is a high earner at the moment, that might not always be so, so they should always claim child benefit anyway, to ensure they get their credits.

[Oliver Colvile (Plymouth, Sutton and Devonport) (Con)]

What impact will these changes have on private occupational pension rebates?

[Steve Webb]

The remaining contracted-out final salary pension schemes currently receive a 3.4% national insurance rebate. That will go, which will be a cost to those employers. We have talked to the pension funds, the CBI and so on. They have said that a fair response is to allow the schemes to reduce accrual rates—for example, to offset any additional cost—and that will be a provision in the pensions Bill that we publish later this week.

[Bridget Phillipson (Houghton and Sunderland South) (Lab)]

The Minister just referred to women applying for child benefit, even though they might not be entitled to any award. Does he not think that we are potentially storing up a big problem for the future, in that many women will see no reason to register for a benefit to which they will not be entitled?

[Steve Webb]

Just to be clear, even if we were not doing any of this pensions stuff, although someone might be the partner of a high earner when their baby is born, people’s relationships change. It is therefore always advisable for them to claim their child benefit anyway—even if, in the end, they receive a zero award—which also sorts out the pension credits problem.

[Sarah Newton (Truro and Falmouth) (Con)]

Along with tens of thousands of other women in their 50s who took a career break to raise their children, I very much welcome these measures, but can the Minister explain to me and other women returning to work how they will interact with the auto-enrolment pension scheme?

[Steve Webb]

Where a mother spends time out of the labour market and then returns to work, her pension rights at the £144 rate will be fully protected. If those women are not in an auto-enrolment scheme, they are not contributing, the employer is not contributing and they are not building up rights under that scheme, but we are ensuring that there is a firmer foundation. If those women carry on receiving, for example, maternity pay during maternity leave, then pension contributions can be taken from maternity pay, which can keep their pension contributions going.

[Paul Flynn (Newport West) (Lab)]

Will the Minister emulate the splendid example of Barbara Castle in 1975, who secured all-party support for the introduction of SERPS? Will he also consider a reform whereby retirees who are fortunate enough still to be in work while receiving the basic pension should continue to pay national insurance? That would be fair, affordable and acceptable and would bring in between £2 billion and £3 billion a year.

[Steve Webb]

I would certainly warmly welcome all-party support. I have tried to approach the issue in as constructive a way as I can, because we want an element of stability in the pension system. I am not convinced that levying national insurance contribution on working pensioners is the way forward. Clearly, what we want is some flexibility in retirement. We want to get away from this cliff edge where people are either working or retired. We are interested in a model of phased retirement, partial drawing of pensions, deferring retirement and part-time work. As soon as we say, “You are either working or retired; you pay national insurance or you do not”, we get back to the cliff-edge model that we are trying to move away from.

[Stephen Mosley (City of Chester) (Con)]

I welcome this statement, which will reduce the complexity of the pensions system, reduce means-testing and reduce the uncertainty for future pensioners. Will the Minister say whether it will also reduce administration costs within the Department for Work and Pensions?

[Steve Webb]

It will indeed. To give a flavour of the scale, at the moment nearly half of all pensioners are entitled to some sort of means-tested benefit. That is an extraordinary and absurd situation. If I tell the hon. Gentleman that by the time the system is fully implemented, we will be down to one in 20 pensioners being entitled to pension credit, that provides an example of the scale of the change we are bringing in.

[Cathy Jamieson (Kilmarnock and Loudoun) (Lab/Co-op)]

In his statement, the Minister made much of the need for plain language, so will he confirm that under the proposals a significant number of women will not receive the new higher-rate single-tier pension in 2017, even though men born on the same date would receive it? Will he also confirm that that potentially affects some 430,000 women across the UK, including 39,000 in Scotland?

[Steve Webb]

I think I have already dealt with that point. Pension ages are changing, and they will not be the same for men and women until 2018. If we have a system based on pension age, it will be different for men and women by definition until they are equalised. It seems to me that the only way to run a system is to base it on people’s actual state pension age—rather than have an actual state pension age and then bring single tier in on a different day for a set of people born in different periods. That would introduce extra complexity, which we are trying to stop.

[Nicola Blackwood (Oxford West and Abingdon) (Con)]

I welcome this statement, as the problems of complexity and inequality that have been identified are all too familiar to my constituents, and they have without doubt undermined this country’s savings culture. Will the Minister explain, however, how the new proposals would affect carers in my constituency? Can he guarantee that his commitment to simplicity would go all the way down to user level?

[Steve Webb]

I am grateful. Carers receive the carer’s allowance, and there are other sorts of carer’s credits. Carers will thus end up with credits for the full £144—or whatever the final rate ends up being—so this has the potential to be a significant benefit to them. The hon. Lady is absolutely right that it is all very well for us to talk about simplicity, but people need to experience simplicity. That is why the White Paper provides an example of a pension statement. It is a single piece of paper saying, “You have built this amount up; if you do this many more years, you will get the full pension.” Everybody will know the rate: it will be a standard figure, and much harder for future Governments to tinker with.

[Andy Sawford (Corby) (Lab/Co-op)]

I have been contacted by my constituent, Mrs Slater. She is a widow, aged 59. She tells me she was informed on her husband’s death that she would benefit from his working life and national insurance contributions. She is now concerned that a flat rate will mean that his hard work will no longer be counted when she retires. Will Mrs Slater will be better off or worse off under these proposals?

[Steve Webb]

I am grateful to the hon. Gentleman, because I understand the concern that any change creates for people. In 2017, I assure him, we will work out people’s pension rights under our new system— 35 years for the full £144, with deductions knocked off for past periods of contracting out—and if that figure amounts to less than the rights someone has already built up, they will start from the higher one. We will honour the past. People will not build up new rights under those sorts of arrangements, but those they already have will be honoured.

[Mr Marcus Jones (Nuneaton) (Con)]

I have been contacted by many of my constituents over the last few months who have been concerned about the investment that they have already made in SERPS and in the state second pension. Will the Minister confirm that contributions already made will be honoured and that pensions will not be rounded down as a result of this policy?

[Steve Webb]

Yes, I can give my hon. Friend the assurance that he seeks. If a pension document says, “You have already built up a pension of £160, £170 or whatever”, people will get at least that amount. Going forward, people will not be able to build up those sorts of pensions in the future, but when they have built them up already, we will recognise those contributions.

[Mr William Bain (Glasgow North East) (Lab)]

The 1.4% rise in employee national insurance contributions and the 3.4% rise in employer contributions appear to involve an initial windfall of about £6 billion a year for the Treasury. What guarantees will there be in the Bill that current members of public and private sector pension schemes do not lose out in real terms as a result of these changes?

[Steve Webb]

We have already given a guarantee that, having renegotiated the public sector pension schemes, we will make no further changes in rights under those schemes for 25 years. While we are changing the national insurance state pensions of public sector workers, we are not touching the public sector pension. Private sector workers may—indeed, probably will—find that their employer adjusts the private sector scheme in response, but, as I have said, even with that adjustment—even with the higher national insurance payment—the vast bulk of workers, certainly those within 20 to 25 years of pension age, will still be net beneficiaries.

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

How will the new system affect those on low earnings?

[Steve Webb]

In the past, the state provided a flat basic pension and then an earnings-related second pension. By definition, low earners received low earnings-related pensions. What we propose is simply a flat pension, which means that low earners will, on average, tend to benefit.

[Mark Durkan (Foyle) (SDLP)]

As well as engaging with the devolved authorities as he has promised to do, will the Minister take time to proof his detailed proposals to ensure that no untoward difficulties arise for cross-border workers? I represent a border constituency, and I know that it is quite normal for people to work on a cross-border basis. Their jobs often move across the border. However, that can create a number of difficulties, including some relating to pensions. Will the Minister minimise those difficulties?

[Steve Webb]

The hon. Gentleman is right to raise the issue of cross-border workers, for which we have had to regulate in the automatic enrolment scheme. We are not aware of any specific issues that would arise from our proposals, because they are built on the national insurance contributory principle. They turn contributions into pensions in a different way, but the system is basically the same. However, if the hon. Gentleman becomes aware of any such issues and wishes to draw them to my attention, I shall be happy to look into them.

[Margot James (Stourbridge) (Con)]

I greatly welcome the simplification of the existing scheme, the introduction of a flat-rate state pension, and the credits for people who have undertaken caring responsibilities and women who have taken career breaks. My hon. Friend has corresponded with me about current pensioners and people who will retire before 2017. What more can he say to reassure my constituents who fall into those categories that they will not lose out terrifically to people on the new system?

[Steve Webb]

My hon. Friend has raised a crucial question. There is some anger and some suspicion that somehow we are throwing money at future pensioners and ignoring today’s, but I can give a categorical assurance that that is not what we are doing. The budget for the new system is the same as the current budget. It is important to note that we are not simply taking the basic pension of £107, sticking 30-odd quid on it, and ignoring all today’s pensioners. We are combining the basic pension, the state second pension and the savings credit into a single flat payment. It is not comparing like with like just to compare the current basic pension with the £144 pension; it is a much more complex process.

[Mr Speaker]

Order. I always listen intently to what the Minister says, but in a bid to make face-to-face contact with his hon. Friend the Member for Stourbridge (Margot James), he is standing sideways. Facing the Chair is always to be preferred.

[Charlie Elphicke (Dover) (Con)]

Does the Minister agree that pensions means-testing seriously undermined a culture of savings built up over many decades? Will he assure us that, following this reform, people will not be punished for making proper provision for their old age, as they were under the last Government?

[Steve Webb]

My hon. Friend is quite right. The nightmare scenario under automatic enrolment would be people opening their newspapers and reading, “Don’t bother to save small amounts of money; the Government will just claw it back.” We are confident that by sorting out the state pension we will not only deal with the position of people at the bottom of the pile, but will make auto-enrolment the success that we all want it to be.

[Gavin Barwell (Croydon Central) (Con)]

I congratulate the Minister, who has demonstrated his mastery of a highly complex subject. In particular, I warmly welcome the decision to reduce means-testing significantly. Under this Government—unlike the last one—those of my constituents who put small sums away for their retirement will not find themselves little better off than those who do not save.

[Steve Webb]

I am grateful to my hon. Friend for his generous comments. Just as my right hon. Friend the Secretary of State is trying to make work pay through the universal credit, we want to make savings pay through the single-tier pension. I believe that if we can do both those things, we shall have done a good and important job.

[Jeremy Lefroy (Stafford) (Con)]

I welcome the statement. At present, British citizens who work overseas can build up a contribution record by making voluntary contributions. Will that continue under the future system?

[Steve Webb]

We do envisage that there will be a system of voluntary contributions. We will have to examine issues such as the price for a year of voluntary contributions, because obviously the pension is bigger, but we envisage that the idea that someone can fill gaps will still be a part of the system.

[Andrew Stephenson (Pendle) (Con)]

I very much welcome today’s statement that a single-tier pension is going to apply to new pensioners after 2017. On Sunday, I met a constituent at my supermarket advice surgery in ASDA in Colne who is in receipt of the basic state pension and pension credit but is unsure whether, as part of wider reforms, pension credit would be replaced by the new universal credit and other pensioner benefits. Will the Minister give clarification on that point?

[Steve Webb]

There will be knock-on effects when the universal credit is introduced: because housing benefit will no longer be paid for people of working age, we will have to incorporate housing benefit for pensioners in the pension credit system. There will be knock-on changes, but we envisage, certainly for the foreseeable future, a continuing separate pension credit system.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I, too, welcome the value these reforms will give to people who have taken time out to care for children and, in particular, for elderly relatives. Does this not send out a clear message that this Government are indeed on the side of families and value them in retirement?

[Steve Webb]

We do indeed believe that, as with a year of paid work paying national insurance, a year bringing up a young child or looking after an elderly or disabled person is an equally valuable contribution to society and should be recognised as such going forward.

[Bob Stewart (Beckenham) (Con)]

As I understand it, 750,000 women will be £9 a week better off under these pension reforms. Will a widow who married early, spent the vast majority of her life looking after the home and children and whose husband then died be better off under these reforms?

[Steve Webb]

As I said in reply to a question a moment ago, where someone has already become a widow and acquired prospective pension rights because someone has died, we will not take those away from them. In future, we want to make sure that every man and every woman builds up a pension in their own right, rather than depending on the contributions of a spouse. But where people have already got those entitlements, they will retain them.

Mali

Monday 14th January 2013 Commons Chamber

16:41

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)]

With permission, Mr Speaker, I would like to make a statement on Mali and on the United Kingdom’s limited support to the French military deployment to assist the Government of Mali. On 10 January, Mali’s Islamist rebel groups, including significant terrorist elements, moved south from their northern strongholds and captured the town of Konna. From there, they posed a danger to Mali’s second and strategically important garrison of Mopti, and potentially to its capital, Bamako. The situation in Mali is a serious concern for the UK; it would not be in our interests to allow a terrorist haven to develop in northern Mali. As a responsible member of the Security Council, we must support the region in limiting the danger of instability in that part of Africa threatening UK interests.

This latest violence follows a year of instability in Mali. In January 2012, Tuareg nationalist rebels under the banner of the National Movement for the Liberation of the Azawad—the MNLA—reignited a long-standing armed rebellion against the Malian state. Fighting opportunistically alongside the MNLA, but with a very different agenda, were two terrorist groups: al-Qaeda in the Islamic Maghreb; and the Movement for Unity and Jihad in West Africa. Another mainly Tuareg group with an Islamist agenda and strong ties to other terrorist groups, Ansar Dine, also fought against Malian troops. In March 2012, Mali experienced a coup d’état by army officers concerned that the Malian Government were not responding effectively to the threat from these northern groups. Shortly afterwards, Islamist rebels took advantage of the instability caused by the coup to establish control of the north of the country—70% of the territory, including 10% of the population. Following strong pressure from the Economic Community of West African States, the military junta then passed control to an interim civilian-led government.

Along with the international community, the UK has been concerned by the potential for terrorist groups to establish a safe haven in northern Mali that, if left unchecked, could pose a threat to Europe and the UK as well as to our interests in the region. Together with the international community, the UK has been promoting an effective political process in Mali, which includes a road map to democratic elections and a mediation process between the Malian Government and the northern political groups. Both the political and the military tracks—and, in the longer term, economic development—must contribute to a strategy to strengthen the whole region and make it less vulnerable to humanitarian and political shocks.

The United Nations Security Council met for an emergency session on 10 January to discuss the movement of extremist forces south and concluded that recent events posed a direct threat to international stability and security. Furthermore, it emphasised the urgent need to counter the increasing terrorist threat and reiterated its call to member states to assist the settlement of the crisis in accordance with United Nations Security Council resolution 2085, issued and agreed on 20 December 2012.

In response to the statement by the United Nations Security Council and in the light of the fast-emerging threat to the city of Mopti, the Government of Mali made a direct request to the Government of France for assistance. France commenced the deployment of a military contingent on 11 January. The Foreign Secretary, the Secretary of State for Defence and the Chief of the Defence Staff discussed the situation with their French counterparts on 11 January. On the afternoon of 12 January, the United Kingdom received a French request for limited military logistic support to its deployment to Mali and the Prime Minister spoke to President Hollande later that evening. They discussed the deteriorating situation in Mali and the importance of limiting civilian casualties, expediting the deployment of regional forces and co-ordinating international efforts effectively. During that phone call, and on the basis of advice provided by the Ministry of Defence, the Prime Minister agreed to the French request for limited logistic support and directed the Chief of the Defence Staff to make aircraft available.

I wish to inform the House that two C-17 transport aircraft have been assigned to assist in the deployment. Additionally, a small detachment of technical personnel has deployed to Bamako airport to assist with the reception of UK aircraft. I am informed by my MOD colleagues that on arrival in Paris one of the aircraft faced technical problems, which engineers are currently working on. My MOD colleagues will provide additional information on that in due course. In the coming days, the African-led force, AFISMA—or the African-led international support mission—will begin deploying to Mali to bolster the Malian forces in the aim of restoring Mali’s territorial integrity.

Separately, the EU is considering a military training mission to help to build the capacity of the Malian forces. As the December European Council made clear, the mission has a clear training-only mandate and no combat role. UK support for the mission and for the Council decision is currently under parliamentary scrutiny, and my right hon. Friend the Minister for Europe will discuss it with the European Scrutiny Committee on 16 January. The EU training mission will support and is in line with the UNSCR obligations on Mali.

I assure the House that British forces will not undertake a combat role in Mali. The Prime Minister has authorised a limited logistical deployment following a direct request from one of our closest allies. The National Security Council will meet tomorrow and will be briefed on the latest developments in Mali. Government Ministers, alongside the Prime Minister’s special representative for the Sahel, my hon. Friend the Member for Eddisbury (Mr O'Brien), will work with the French Government, the region and international actors such as the UN to put in place the short-term resolution to the crisis and the longer term conditions for security and economic development. The UN Security Council will meet again this afternoon to discuss the crisis.

The House will no doubt be concerned about the humanitarian situation in the region and what the UK is doing to alleviate that situation. The UN reports that more than 200,000 people have been displaced inside Mali and another 210,000 have fled as refugees in the region. In addition to the immediate support to France, the UK has contributed £59 million in humanitarian aid to the Sahel region through multilateral organisations. In December 2012, the Department for International Development agreed a further £15 million in humanitarian aid to the region and funds from the UK have been put to work to help the immediate needs of the Malian people.

Finally, I would like to reassure the House that the safety of British nationals and personnel remains of paramount concern. Our travel advice has advised against all travel to Mali since the coup in March 2012. That was updated on 11 January this year to advise British citizens remaining in Mali to leave by commercial means, if possible. Our embassy in Bamako is in regular constant touch with the British community there, and the Foreign and Commonwealth Office in London is, of course, working to ensure that contingency measures are in place.

The threat posed by the instability in Mali is of grave concern to the UK. We must not allow northern Mali to become a springboard for extremism and create instability in the wider west African region. The ferocity and fanaticism of the extremists in northern Mali must be not be allowed to sweep unchecked into the country’s capital. France, which has an historic relationship with Mali, is quite rightly in the lead. In the coming days we will be focused on the regional and international diplomacy we must achieve to check this emerging threat.

16:51

[Mr John Spellar (Warley) (Lab)]

I thank the Foreign Office Minister both for his statement and for advance sight of it. We were slightly surprised that on the day of Defence questions, the statement was not made by the Ministry of Defence, especially given the difficulties experienced today by one of our C-17s—although with the Defence Secretary absent, that is probably understandable.

On behalf of the Opposition, I clearly state our support for the commitment that is being made in support of our close and important French ally, acting in pursuit of a Security Council resolution which stated

“its grave concern about the consequences of instability”

in northern Mali

“on the region and beyond . . . the continuing deterioration of the security and humanitarian situation”

and

“the increasing entrenchment of terrorist elements including Al-Qaida in the Islamic Maghreb (AQIM)”

and affiliated and other extremist groups. That resolution went on to call on member states to provide assistance to Mali’s armed and security forces as soon as possible in order to restore the state’s authority over its entire territory.

It is important, therefore, to be clear on the strategic purpose of this military engagement and the end point that is sought. Is it to enable the transitional authorities to regain control of the entire north of the country, as outlined by the Security Council in October, or just to halt the southern advance of rebel forces? Those extremist groups operating in the Sahara and Sahel regions are responsible for guerrilla attacks, suicide bombings, attacks against Government, military and civilian targets, as well as for gross abuse of human rights.

As the Minister said, this is not just an issue for Mali, important as that is; it is an issue for stability across the region, especially as there are concerns that AQIM has been networking with other terrorists groups in the region, including in Nigeria, Somalia and Yemen. It is very clearly against the interests of international security that they should be allowed to establish a base in Mali. From our own Government’s experience of the successful intervention in Sierra Leone, we know how effective timely, well executed military action can be. That depends on good intelligence. There is a concern that the fall to Islamic militants of the southern town Konna—the strategically important town in Mali which led to the French taking action—appeared to take the international community by surprise. Why was that? Why was the intelligence not better, and how can it be improved?

I realise the difficulty in commenting on security matters, but the French President, Francois Hollande, has ordered an increase in domestic security in the aftermath of recent French military operations in Mali and in Somalia. Now that we are engaged in assisting the French operation, can the Minister reassure the public that our Government are taking similar action here in the UK and also to protect the position of British citizens abroad?

While supporting this action, the British people will want to understand the military consequences of the announcement. Our first current military priority must remain Afghanistan, so can the Minister say whether the deployment of British military aircraft will impact on ongoing operations in Afghanistan or other commitments? Will he also say over what period the aircraft will be operational in Mali, and what will be the cost to the defence budget?

Given the leakage of weaponry from Libya, what assessment has the Minister made of the risk from surface-to-air missiles to our and other countries’ aircraft? I raised that point several times with Defence Ministers in 2011, so I hope that the current Ministers are more seized of its importance than Ministers were then.

What will be the involvement of other nations, obviously beyond the commitment of the French? It has long been intended that the lead on supporting the Mali Government should be provided by an African-led force, so does not the present French deployment only emphasise the urgency of that? Will the Minister set out what steps are being taken to speed up efforts to achieve that, and when does he expect that the African force led by ECOWAS will reach the UN-authorised level of 3,300 personnel on the ground?

We want to be clear about the underlying objectives of the mission. Is it viewed as a one-off British contribution, or does it mark the beginning of a phased engagement that could see further British capabilities playing a part in the future? There are press reports today about trainers being sent and RAF drones being prepared, and the Minister indicated that ground crew will be in theatre, so will he clarify the position?

Essential as military action is, it is not sufficient, and the lasting stability that we all want in Mali, and in west Africa more generally, will be realised through a political process involving a successful, inclusive mechanism for transition to a permanent political authority in Mali. The involvement of regional partners, especially the Algerian Government, will be important. What discussions have taken place between us—and indeed our allies—and the Algerians on this matter? Will the Minister provide the House with the Government’s assessment of the likelihood of such a transition and the potential for lasting political stability and reconciliation?

Long-term stability will come through the developmental process, which is why we support the governance and transparency fund in Mali—I am pleased that the Secretary of State for International Development is in the Chamber—and west African food aid programmes. In recognising the threat, it is essential that we also recognise the need to focus on longer term preventive measures that can limit the requirement for military action—that is to say that interventionism should be about proactive developmental work as much as reactive military responses. Will the Minister update the House on how the Government are ensuring that our developmental priorities are linked to our security objectives in north-west Africa?

Finally, I am sure that the Minister, with his usual courtesy, will seek to ensure that any escalation beyond what has been announced today is brought to Parliament for its approval.

[Mark Simmonds]

I thank the right hon. Gentleman for his support. His remarks will be extremely helpful as we continue diplomatic discussions with our international partners.

I understand that the deployment of the two C-17 planes was discussed earlier during Defence questions. The reason it was decided that the Foreign Office should take the lead on the statement was the complex diplomatic and regional foreign policy implications of this limited deployment.

The right hon. Gentleman was correct to highlight the UN Security Council resolution. As he will probably be aware, resolution 2085, which was adopted just before Christmas, was the second to set out, under chapter VII, a whole series of policy strands that need to be followed to promote security and territorial integrity in not only Mali, but the wider region. Included in those strands is the all-important matter of human rights, which he was absolutely right to mention.

The right hon. Gentleman asked what we wanted to achieve, and I can summarise that in two specific strands: first, to diminish significantly the presence and influence of al-Qaeda in the Maghreb and the allied terrorist groups; and, secondly, to secure a democratic Government who are acceptable to the whole people of Mali—in the north and in the south—and who provide basic services. Priority should therefore be given to a lasting political process.

The right hon. Gentleman will not be surprised to hear that security, as it relates to the UK, is constantly monitored and under review, but at the moment we do not feel that it is necessary to raise the threat level beyond substantial. I can confirm that there will be no impact on the priority operations in Afghanistan, and the Prime Minister has made it categorically clear that the initial supporting deployment will be for a period of one week. He has also made it clear that no combat troops from the UK will be involved, and we have no plans to provide more military assistance.

The right hon. Gentleman was also right to pinpoint the importance of the African Union and ECOWAS-led force. One of the proposals under discussion is to bring forward that deployment, and some member states of ECOWAS have already suggested that they will be willing to put troops into Mali. Togo and Senegal are the first two that immediately spring to mind. He is also right to highlight the importance of Algeria in this process. I can assure him that both the Prime Minister’s special envoy, my hon. Friend the Member for Eddisbury (Mr O'Brien), and the Foreign Office have been discussing this matter with the Algerian Government and their representatives in New York. It is essential that we bring back the territorial integrity of Mali as part of what we want to do.

The right hon. Gentleman is absolutely right to highlight the importance of long-term sustainable development, and that is why the Foreign Office is working closely with DFID to make sure that there is not only a political solution but sustainable economic development to break the cycle of conflict in the northern part of Mali.

[Mr Henry Bellingham (North West Norfolk) (Con)]

Does my hon. Friend agree that Ansar Dine’s close links with Boko Haram is another reason why this organisation cannot be viewed in isolation, and obviously has potential to interact and encourage further terrorist activity? Does he also agree that if the EU deployed a training team, it would be in our interests to support it, and that it would make sense to do that from our training mission in Sierra Leone?

[Mark Simmonds]

I thank my hon. Friend for his remarks. I know that as my predecessor in the Foreign Office he had significant involvement in monitoring this situation. He is absolutely right to highlight the potential danger and links between the respective terrorist organisations in the northern part of Mali, in northern Nigeria and elsewhere in the Sahel. He is also absolutely right to highlight the importance of the potential EU training mission to build capacity in the Malian military forces to ensure that they have the capacity to retake the northern part of Mali and to hold it once the territorial integrity has been regained.

[Mr Jack Straw (Blackburn) (Lab)]

Like my right hon. Friend the Member for Warley (Mr Spellar) I commend the decision taken by the Prime Minister to give this practical support to the Government of France. Will the Minister spell out in a bit more detail the consequences for the west African Commonwealth countries and their stability were effective and firm action not taken to deal with the threat in Mali straight away?

[Mark Simmonds]

I am grateful for the right hon. Gentleman’s remarks about the Prime Minister’s correct decision. He is also right to highlight the potential for the terrorist activity taking place in the northern part of Mali spreading to other parts of not just the Sahel but west Africa. There are clearly potential dangers from the threats that have been articulated by those in al-Qaeda in the Islamic Maghreb not only to those in Europe, but to economic and social development and to the alleviation of poverty, which is abject in some parts of the Sahel and in northern Mali, and to the commercial interests of UK firms in the region.

[Martin Horwood (Cheltenham) (LD)]

Some northern groups, such as the MNLA and even Ansar Dine are not straightforward jihadists, and there have been genuine grievances in the north around issues such as poverty and disempowerment, all of which suggests that a political solution as well as a political response might be possible, given enough subtle use of local intelligence and negotiating skills. Can Britain ensure that subtlety in negotiating skills are deployed alongside the Mirage jets, especially since Britain is widely regarded as rather more neutral in the region than France?

[Mark Simmonds]

The hon. Gentleman makes a very good point: this is not a simple picture. A variety of groups are involved in northern Mali—not only those associated with terrorist activities but, in some cases, those associated with the Tuareg people, who have not necessarily been sufficiently engaged in the government of Mali in recent years. An important process is in place, established under the auspices of the United Nations and set out in UN Security Council resolutions, that encourages dialogue and discussion with those who want to play a responsible part in trying to find a satisfactory and peaceful solution, in the long term, to the future of Mali as a credible sovereign state.

[Angus Robertson (Moray) (SNP)]

Will the Minister update the House on the planned European Union mission to Mali and the potential for UK participation in that? How would it operate in the circumstances that exist on the ground there? Will he give an update on the position of other EU partners, including the Danes, who have apparently been considering logistical support today?

[Mark Simmonds]

The European Union training mission in Mali, which will be discussed under the common security and defence policy, involves a few hundred training personnel being sent to Mali to build capacity in the Malian military and security forces to enable them to reduce the influence of the terrorist activity taking place in the northern part of the country. The detail is still being discussed, but recent events at the end of last week mean that these discussions need to be expedited so that the Malian military can have the capacity not just to retake the northern part of their country but to make sure that they can provide security and stability in the months and years ahead.

[Mr Crispin Blunt (Reigate) (Con)]

When did contingency planning for this begin in the Ministry of Defence or at Permanent Joint Headquarters? How big is the small detachment in Bamako, and how many RAF personnel will be deployed to France?

[Mark Simmonds]

The discussions relating to the problem in northern Mali have been going on for some considerable time in the Foreign Office, the Ministry of the Defence and the Department for International Development. The response that the Prime Minister gave to the request from President Hollande, who was responding to a request from the Malian Government, was a crisis response. It was not a detailed, thought-through response—it has been thought through since—but a response to a particular need at a particular time of crisis. As my hon. Friend will be aware, these things are monitored persistently and continually. I do not have the numbers with me on the military personnel who are being deployed to Paris and Bamako, but I can tell my hon. Friend that the number of people operating the military aircraft and those who will be protecting them will be very small.

In response to the hon. Member for Moray (Angus Robertson), the Danes have said that they are going to make commitments on logistical support, as have others in the international community beyond the immediate region.

[Jeremy Corbyn (Islington North) (Lab)]

The Minister will be well aware that there is a great deal of antagonism towards the Malian army and its human rights record in the north of the country, that the Tuareg people have been systematically excluded from the political process, and that that has laid very fertile ground for this conflict to break out. Is he concerned about mission creep and the unintended consequences of Britain’s and France’s involvement in a war that will create a growth in the forces he is seeking to oppose, rather than bring about the political settlement that is necessary to achieve peace and prosperity for the people of the country?

[Mark Simmonds]

I reiterate that the Prime Minister made it very clear that we were offering only limited logistical support—two C-17 planes and no combat troops—and have no plans to provide more military assistance. The hon. Gentleman is absolutely right, though, to say that it is necessary to bring the Tuareg and their representatives into the political process and the political governance structures of an integrated Malian state. That is being discussed at the United Nations and at a regional African level, led by the African Union and other senior figures in ECOWAS.

[Bob Stewart (Beckenham) (Con)]

The House totally understands that no combat troops will be deployed, yet technical personnel will be sent to Bamako airfield to service the large aircraft that will presumably bring in equipment such as tanks. When those aircraft land, will those technical personnel include force protection personnel, possibly including personnel from the RAF Regiment, who are actually soldiers?

[Mark Simmonds]

I thank my hon. Friend for his question. The capital of Mali is pronounced “Bam-ack-co”.

Just to clarify the matter, there are currently no plans for NATO to be involved in Mali. The EU has drawn up a mission comprising 400 men, about 250 of whom will be force protection, and they are due to deploy later in the year. My hon. Friend asked a specific question about the number of military personnel who will be there to operate and to defend, if necessary, the aircraft when they are in Bamako. I will have to let him know about that.

[Mr Peter Hain (Neath) (Lab)]

Does the Minister share my scepticism at the French Foreign Minister’s prediction that French soldiers will be out of Mali in a matter of weeks? That seems pretty unlikely to me. On the comparisons with Sierra Leone, does the Minister agree that it would be wrong to make the wrong comparisons? ECOWAS was deployed in Sierra Leone, and I understand that it will quite rightly be deployed in Mali, but the situation in Sierra Leone required British troops to go in and defeat the terrorists there. The second point on Sierra Leone is that there were no jihadi extremists with an international dimension, including al-Qaeda. Sierra Leone was a specific situation, fuelled by blood diamonds. For all those reasons, I believe that the situation in Mali could become an incredibly long-drawn-out morass, and we must be careful to promote a political solution to it.

[Mark Simmonds]

The right hon. Gentleman makes an interesting point. He is right to highlight the complexity of the situation, and the fact that it will take some considerable time to arrive at a complete solution—a political resolution to the problem and providing stability to enable the northern part of the country to be part of the territorial integrity of Mali. The United Nations resolutions are absolutely clear that the political process is a fundamental part of finding a stable, long-term solution to the problem. I very much hope that the French-led military operation, to which we are providing limited logistical support, will be a short time-frame deployment. However, the right hon. Gentleman is right to say that the diplomatic, political and economic processes will take some time.

[Mark Pritchard (The Wrekin) (Con)]

Is it not the case that al-Qaeda and its affiliates are not dead, and that there is now an arc of terror from Somalia in the east of Africa right up to Algeria and now down to Mali in the west? Will the Minister confirm that, while Britain and France are offering support, there will be a Malian and African solution to the problem? Does the situation in Mali not underline the fact that today’s fragile states can become tomorrow’s failed states, which can have a direct and sometimes costly impact on the British national interest?

[Mark Simmonds]

I agree with my hon. Friend. He is absolutely right to set out the trajectory that can be put in place when the international community does not act expeditiously to resolve particular problems. The African Union and ECOWAS have been seriously engaged with this problem for some considerable time, and I can assure him and the House that, in all the discussions held with senior African political figures in the region and elsewhere, with the United Nations and with other political figures around the world by my hon. Friend the Member for Eddisbury (Mr O’Brien) and me, and by other Foreign Office and Defence Ministers with an interest in this area, there has been unanimity of concern and purpose that the international community needs to act in a co-ordinated way to resolve this difficult and dangerous problem.

[Gavin Shuker (Luton South) (Lab/Co-op)]

On the specific issue of the C-17 that is experiencing difficulties at present, is it the intention of the Ministry of Defence to release a further C-17 airframe should the problems with that aircraft not be resolved, and does it have the capacity to do so?

[Mark Simmonds]

That is an operational matter for the military to decide, but I can inform the hon. Gentleman and the House that the spare parts for the plane that is not functioning as it should be at present are on their way to Paris as we speak.

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

To what extent do the Government believe that the insurgency in the north of the country has indigenous support, and to what extent, if at all, are outside Governments supporting the insurgency, as far as we can tell?

[Mark Simmonds]

From the information that I have, I can inform my hon. Friend that there is limited support from the population who live in the northern part of Mali for the terrorist activities taking place. The atrocities that are being committed are appalling, including not just the prevalence of sexual violence and rape, but the abduction of children and persuading them, through appalling means, to participate in the military conflict. Stoning, amputations and other participation in extreme sharia law are also taking place. That is not the main reason we are providing limited logistical support, but it starts to paint a picture of why most of the people in northern Mali are not supportive of the terrorist activities and Islamist atrocities, and, indeed, why so many of them—approximately 200,000—have left the northern part of Mali.

[Mark Durkan (Foyle) (SDLP)]

As well as condemning the vicious behaviour of the rebel forces, will the Minister address more directly the clear human rights violations of Malian Government forces? On the complicated cast of support and tendencies on the rebel side, do the Government share the suspicion of some credible observers that there is Qatari and Saudi support for some of the rebel forces, and have they addressed those regimes about the matter?

[Mark Simmonds]

The hon. Gentleman is absolutely right to highlight the importance of human rights, which he will not be surprised to hear is an integral part of the training that will be given to the Malian Government to ensure that they are well aware of the way in which the military should behave when they go into the northern parts of Mali. He will also not be surprised to hear that, on Saudi Arabian and Qatari involvement, I have seen no evidence to support the reports in the media that they are supporting terrorists in the northern part of Mali.

[Margot James (Stourbridge) (Con)]

Islamic extremists have been threatening civil society and committing gross atrocities in west Africa for many years, but the situation in Mali is a marked escalation of violence. As in Afghanistan, the Islamists have been brutal in their suppression of women’s rights in Mali. Will my hon. Friend reassure the House that he will work closely with the Department for International Development to ensure that Malian women are fully involved in any future conflict reconciliation?

[Mark Simmonds]

My hon. Friend is absolutely right to highlight the appalling level of atrocities taking place against women, particularly in the northern part of Mali. I know that she will be pleased to support the Foreign Secretary’s preventing sexual violence initiative, which we are pushing forward and engaging with very seriously across many African countries and elsewhere in the world. My hon. Friend is also absolutely right to highlight the importance of the involvement of women at a much earlier stage in the resolution of conflict, both in northern Mali and elsewhere.

[John McDonnell (Hayes and Harlington) (Lab)]

The Minister in his statement reassured the House that British forces will not undertake a combat role in Mali. Could he give an assurance that British forces will not undertake a combat role in future unless there is a debate and vote in this House?

[Mark Simmonds]

I reiterate what I said before: the Prime Minister made it clear that this is limited logistical support and that there will be no combat troops on the ground. We have no plans to change the military support that we are giving.

[Andrew Stephenson (Pendle) (Con)]

Will my hon. Friend say more about the conversations that he has had with Mali’s neighbours, many of which share with it porous borders and the threat of al-Qaeda in Africa? Has he discussed the contribution that those neighbours could make to tackling the threat in Mali?

[Mark Simmonds]

My hon. Friend is right to make that point. The neighbouring countries are extremely concerned about the possibility of the terrorists expanding their area of control into their countries because of the porous borders. They are keen for the region, under the auspices of the international community at the United Nations, to resolve the problem as far as is possible as quickly as possible. There is great concern about the increasing migration from northern Mali that may occur if the problem continues, and the knock-on that that may well have in Europe. Another problem is the criminality in parts of the Sahel, including drug, cigarette and people smuggling. All those problems need to be resolved as much as is possible, and the international community is working to that end.

[Paul Flynn (Newport West) (Lab)]

Why us again? We have no post-colonial obligations to Mali. Even without mission creep, we are already exposed to possible terrorist reprisals because of the actions that we have taken. We have seen 618 British lives lost in two wars where there was little direct threat to British interests. Why are the Government so eager to put at risk the lives of British citizens in order to become the policeman of the world?

[Mark Simmonds]

The hon. Gentleman will not be surprised to hear that I do not share his analysis. As we have discussed, there are serious concerns not just in the UK, but in Europe and the rest of the international community. China and Russia are concerned about what is happening as well. We are right to provide limited logistical support to the French, who are taking the lead because of their historical links with Mali. The two main reasons we are doing this are security and to support the region in ensuring that the conflict does not spread.

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

Has a timeline for the transition to democracy been discussed, so that the military can go back to the borders, there can be a civilian Government and the United Kingdom cannot be accused of supporting a military dictatorship?

[Mark Simmonds]

Of course, there is not a military dictatorship in Mali at the moment. Although there was a coup d’état in March, pressure from ECOWAS, the regional African economic group, ensured that the military handed over to a civilian-led transitional Government. My hon. Friend is right about the importance of the success of a political track alongside the military track. That is why, as set out in both UN resolutions, there are detailed timelines for the transition from the current civilian-led Government to a democratic process. However, before that can happen, there needs to be security and stability in northern Mali to ensure that those who live there can participate in the democratic process.

[Roger Williams (Brecon and Radnorshire) (LD)]

Charities based in my constituency have been active in northern Mali, in particular in Timbuktu, to improve the medical and educational facilities, the local economy and agriculture. They are concerned about the well-being of the people with whom they are working. Will the Minister commit to supporting those charities when a degree of stability and security have been re-established in starting their work again, which is greatly valued by the local people?

[Mark Simmonds]

I thank my hon. Friend for his remarks and, through him, I thank the charitable organisations in his constituency for their excellent and dedicated work. He will be aware of the terrible destruction of some historic Islamic icons that were an essential part of the historic make-up of Timbuktu. I am happy to provide support to the charitable organisations that he talked about. I suggest that he also take up the matter with my right hon. and hon. Friends the Ministers in the Department for International Development. It is essential that, when the security situation allows, humanitarian assistance and further assistance to build capacity in the provision of services are allowed in to ensure that people in northern Mali have a proper state under which they can lead happy and fulfilled lives.

[Mr Andrew Turner (Isle of Wight) (Con)]

I should like to pursue the question asked by my hon. Friend the Member for New Forest East (Dr Lewis). There are obviously people in Mali supporting this action, but how many people are coming from outside the country to support it, and how many countries around Mali appear to be supporting it—not the Governments, of course, but the local people?

[Mark Simmonds]

I would say three things in response to my hon. Friend. The French deployment is of course at the request of the Malian Government, and the limited British support is at the request of the French. There is no doubt that the terrorist activities in the northern part of Mali have attracted people from outside northern Mali to participate, which is one reason that the matter needs to be dealt with sooner rather than later.

In response to my hon. Friend’s final point about the support from regional countries, from the discussions that I and my right hon. and hon. Friends in various Departments have had, I think I can assure him that almost all Governments, and therefore people, in the region support finding a long-term, satisfactory solution to the current problems in Mali.

Crime and Courts Bill [Lords]

Monday 14th January 2013 Commons Chamber

Second Reading

17:26

[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move, That the Bill be now read a Second time.

Our laws need to keep pace with our changing society, and our law enforcement response needs to stay ahead of the changing threat. We have achieved a lot in the past two years. Our police reforms are working—crime is down 10%, and the front-line service is being protected. However, we need to do more to ensure that there is an effective, national response to the threat from serious, organised and complex crime. At the same time, the civil and criminal justice system that we inherited is just not equipped to deal with the challenges of today. Our courts need to be tough on wrongdoing, our non-custodial sentences need to command public confidence and our judiciary needs to reflect contemporary society. The Bill will address all those issues.

Together, the Bill’s provisions will bring our justice system into the 21st century, ensure a focused, effective crime-fighting response to the threats that we face today and better prepare us to fight crime and secure our borders. Over the past two years, the Government have already implemented the most radical reforms that law enforcement has seen in a generation, but there remains a fundamental paradox in policing that we need to correct. While Governments over the years have focused on local policing, they have consistently neglected the threat from serious, organised and complex crime. That threat is far-reaching. It involves about 30,000 individuals across the country and 7,500 organised crime groups, at an estimated annual cost to the economy of up to £40 billion.

However, the real cost of organised crime can be seen in the communities that it terrorises and the lives that it wrecks—the young people whose lives are cut short by drug addiction; the women who are trafficked and forced into prostitution; the children who are denied a childhood through sexual abuse and exploitation; and the elderly and vulnerable who are robbed of their savings through fraud.

In 2011, we set out the first truly comprehensive strategy to combat the threat from organised crime, “Local to Global”. The Bill will establish the agency that will spearhead our operational response by cutting crime and protecting the public. Whereas the law enforcement effort is currently patchy and fragmented, the National Crime Agency will bring a decisive, intelligence-led response to organised crime.

[Mr Henry Bellingham (North West Norfolk) (Con)]

The Home Secretary will be aware that the Serious Organised Crime Agency has a network of offices around the world where it does an excellent job in combating narcotics and serious crime. Can she confirm that under the new arrangements those excellent networks and offices will be kept open, even though they may be more streamlined and even more cost-effective?

[Mrs May]

I am grateful to my hon. Friend for reflecting on the valuable and important work that SOCA does around the world. The international network will continue to be maintained. There may obviously be changes over time, depending on requirements and where the intelligence leads us, but it is intended that the international network, which is widely respected because it does such good work, will continue under the National Crime Agency.

[Keith Vaz (Leicester East) (Lab)]

I support the restructuring of the landscape of policing but I am a bit concerned about the budgets. When the head of the National Crime Agency gave evidence to the Home Affairs Committee he said that the agency would have a budget of £400 million. As the Secretary of State knows, SOCA’s last budget was £400 million, and that of the National Policing Improvement Agency £392 million. The difference is £400 million. Where will the additional money from the merging of those two organisations end up?

[Mrs May]

The right hon. Gentleman will know that not all parts that were under the NPIA are going into the NCA. Other sections of the NPIA are effectively going into parts of other organisations—some will come to the Home Office; the College of Policing that we have set up will look at standards and training. It is not possible simply to take the two budgets, add them together and say, “Where is the money going?” The money for the National Crime Agency will come from the precursor agencies, but as for other bodies, we will obviously have to look carefully at its budget at a time when forces and others are having to take cuts.

[Dr Julian Huppert (Cambridge) (LD)]

I want to say again how well regarded SOCA is. When the Home Affairs Committee looked at drugs policy around the world it was clear wherever we went that there was huge respect for SOCA, its brand and the work it does to counter narco-trafficking. One recommendation in the Committee’s report on drugs was that we should try to preserve the badge of SOCA—perhaps as a serious overseas crime arm or something—so that we would not have to explain to lots of countries why we had changed its name. Will the Home Secretary look at that idea?

[Mrs May]

I thank my hon. Friend for once again reiterating the good work that SOCA does, and I recognise that there is a brand issue. SOCA is being brought into the National Crime Agency and there will be a serious organised crime command within that agency. What the international parts of the NCA are called, and how they are configured with other commands in the NCA, are currently under discussion.

The National Crime Agency will be a visible, operational crime-fighting agency. It will have four commands—I have just referred to that issue—that will allow it to lead the national response on organised crime, border policing, economic crime and child exploitation. It will fulfil the coalition commitment to create a dedicated border policing command, ensuring a joined-up response to those who seek to enter the UK illegally or in order to do harm. It will be home to the national cybercrime unit, bringing together existing capabilities to keep the public safe from online threats.

The NCA will hold the single authoritative intelligence picture of organised crime affecting the United Kingdom, underpinned by strong powers and duties to ensure it can share relevant information across law enforcement bodies. Part 1 of the Bill will give the National Crime Agency the ability to task and co-ordinate the law enforcement response to organised crime. Individual police forces will continue to play an important role in tackling criminal gangs, but the NCA will ensure its resources are used in the most effective way.

To ensure the right operational response at the right level, the Bill also provides for co-operation and tasking between the NCA and police forces. I would expect agreement to be reached locally about which agency is best placed to take action against a given criminal group. Where—exceptionally—agreement cannot be reached, the Bill provides the necessary backstop powers for the NCA to direct the provision of assistance or that a particular task be undertaken.

The NCA will be operationally focused with an experienced crime fighter at its head. The Bill provides for clear governance arrangements, with an operationally independent director general answering directly to the Home Secretary for delivering the agency’s strategic priorities. Keith Bristow, the NCA’s first director general, has made it clear that to undertake his role effectively he will need an open and responsive relationship with police forces and police and crime commissioners. The Bill will ensure this by requiring that the devolved Administrations and key figures in law enforcement are consulted on the NCA’s annual plan and its strategic priorities. From the director general downwards, NCA officers will need to be equipped with the necessary powers to do their job, so the Bill provides for NCA officers to be designated with the powers of a constable, customs officer and immigration officer.

Given the vital crime-fighting role that NCA officers will have, it is inconceivable to me that their work should be disrupted through industrial action. Although my preference is to reach a no-strike agreement with the relevant unions, the Bill includes a back-stop statutory prohibition on industrial action. Few would wish to contemplate the police being able to strike, and I am pleased that in the other place no one argued against applying the same restrictions to operational NCA officers.

Before moving on to other aspects of the Bill, I want to touch on a possible future role for the NCA in respect of counter-terrorism policing. The House will be aware that the other place voted to remove what was clause 2 of the Bill, which enabled counter-terrorism policing functions to be conferred on the NCA by order. The debate in the other place was about the level of parliamentary scrutiny that should be given to such a decision, not whether the NCA should take on counter-terrorism policing in the future.

I have been clear that no decision on this issue has been taken and that none will be taken until after the NCA has been established and following a detailed review. However, the creation of a national crime agency with a national remit to combat serious, organised and complex crime invites the question whether it should take on national functions in respect of counter-terrorism policing. I do not come to this question with any preconceived ideas about what the answer should be, but it was prudent, in my view, for the Bill as originally introduced to have included a future-proofing provision.

I also recognise the points raised in the other place about possible future decisions on counter-terrorism policing and sensitivities in Northern Ireland. Indeed, the original clause, as drafted, provided strong protection for the Chief Constable of the Police Service of Northern Ireland in relation to counter-terrorism policing in Northern Ireland. I will continue to reflect on the debate in the other place before deciding how best to proceed, and I am sure that the House will want to come back to this issue during the later stages of the Bill’s consideration.

As well as establishing the NCA, we need to ensure that both the NCA and its law enforcement partners have the powers they need to fight organised crime in all its manifestations. In combating fraud and other economic crimes, the Bill confers on the Serious Fraud Office and the Crown Prosecution Service the ability to enter into deferred prosecution agreements with organisations alleged to have committed economic wrongdoing. These agreements will enable prosecutors to impose tough financial penalties and other sanctions on organisations for wrongdoing as an alternative to protracted court proceedings with uncertain outcomes.

To support the fight against immigration crime, part 3 of the Bill extends to the UK Border Agency’s financial investigation teams certain surveillance and property interference powers available under the Regulation of Investigatory Powers Act 2000 and the Police Act 1997, as well as asset seizure powers under the Proceeds of Crime Act 2002. Under the law as it stands, there is an artificial distinction whereby these powers are available to Border Agency staff investigating customs offences, but not to those investigating immigration offences.

On the Proceeds of Crime Act, we need to ensure that our ability to seize money and assets derived from criminal conduct is not undermined by legal loopholes. I can therefore announce that we will table amendments to the Bill that will restore the civil recovery scheme to the position it was commonly understood to be in prior to the Supreme Court’s decision last summer in the case of Perry. In its judgment, the Court held that the scheme only applied to property within the jurisdiction of the UK courts. This judgment significantly weakened the reach of the Proceeds of Crime Act, and it is right that we should take action to prevent those who engage in criminal conduct here from being able to put their ill-gotten gains beyond the reach of the UK courts.

As well as strengthening enforcement at the border through the NCA and UKBA, the Bill will ensure that we can make the most effective use of resources by closing a long-standing loophole in the immigration system. Part 3 of the Bill removes the full right of appeal against refusal of an application for a visa as a family visitor. I know this provision has caused a number of hon. Members some disquiet.

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

It has indeed caused a great deal of disquiet and is a repeat of what happened when the Conservatives were last in office. Is it right and proper that someone refused permission to come here for a family visit is denied the right of appeal? In effect, that means that the immigration officer would decide on the application and be the jury. As I understand the position, at least 50% of such appeals are successful. Is that why they are being abolished?

[Mrs May]

No. What I say to the hon. Gentleman and others who have concerns is that this is the only visitor category that retains a full right of appeal. As a result, I think we see some abuse in this system. It is better to focus the resources available for the immigration appeals systems on those appeals, such as on the refusal of asylum, that could have a far greater impact on the lives of the individuals concerned.

[Mr Jack Straw (Blackburn) (Lab)]

May I ask the Home Secretary to expand on two things? First, will she expand on her suggestion that initially the right of appeal in visitor cases extended beyond families, because that is simply not true? I introduced it as Home Secretary, and it was only ever applied in respect of family visitors and not more widely, as I remember. Secondly, can she explain what she means by the word “abuse”? Like many hon. Members on both sides of the House, I have plenty of appeal cases, and the purpose of the appeal is to filter out those appeals that are genuine from those that may be an abuse. Since at least a third of appeals are successful, however, there is no possible argument for abandoning this right of appeal.

[Mrs May]

The right hon. Gentleman is right that the family visit route is the only visit route that has this right of appeal. Of course, it is not being abused in all cases. I mention the word “abuse”, because what often happens in the system at the moment with these appeals is that a decision is taken by immigration officers on the basis of the evidence available to them at the application stage. When the appeal goes forward, further evidence is introduced, and it often does not have the same degree of attention and consideration given to it as is given by immigration officers to the evidence given to them in the application process. What we see is not an appeal against the decision of the immigration officer. In many cases—I would say in most cases—an appeal is heard on the basis of different evidence.

[Several hon. Members]

rose—

[Mrs May]

I am happy to give way to the right hon. Member for Blackburn (Mr Straw), and there are one or two others.

[Mr Straw]

Our constituencies differ. Over the past 30 years, I have dealt with hundreds of visitor appeals, and I have to say to the right hon. Lady that what she is being told by her officials is very different from my experience. In the vast majority of cases that go to appeal, the initial evidence has been made available by the applicant, here and abroad, to the entry clearance officers. It is the fact that that evidence has not been properly treated by the immigration officers that then leads to appeals. I ask her to look at the evidence base on which she is relying.

[Mrs May]

I say to the right hon. Gentleman that in many cases the appeal process for family visit visas is being used just as a means to present fresh evidence into the appeals system in support of the application, and that is not the point of an appeals process. There is another point for individuals who go through the appeals process: if fresh evidence is available, they should make a fresh application. It takes less time for a fresh application to be considered than for an appeal to be considered. With a fresh application, people will on average be able to have a decision within 15 days, rather than eight months with the appeals process.

[Mr George Mudie (Leeds East) (Lab)]

In all fairness to the applicants, the Home Secretary should withdraw the word “abuse”. Is it not true that the independent commissioner for the UK Border Agency continues to show concern about applicants being turned down for not sending in documents that they were never told in the first instance were required? If she continues to say the applicants are abusing the system, then in all fairness she must say that UKBA entry clearance officers are abusing the system. Does she not agree that the system does not need to be abolished, but to be made to work more sensibly?

[Mrs May]

Let me say to all hon. and right hon. Gentlemen who have raised this issue that analysis of a sample of 363 allowed family visit visa appeal determinations in April 2011 showed that new evidence produced at appeal was the only reason for the tribunal’s decision in 63% of those cases. In only 8% of cases was new evidence not at least a factor in the allowed appeal. If people have new evidence, they can make a fresh application. It will be heard and considered, and a decision will be given to them in far less time than it takes to go to appeal. A system of appeal is about appealing against the original decision, not appealing against the original decision plus bringing forward extra evidence.

[Dr Huppert]

rose—

[Mrs May]

I really think I have answered questions about this issue, which I am sure will continue to be a matter for debate during the Bill’s progress.

Just as we are bringing the law enforcement response into the 21st century, so this Bill will ensure that our courts and our laws can meet the challenges of today’s society. Part 2 will enable the courts to deal robustly with wrongdoing and will ensure confidence in the system of non-custodial sentencing. For serious offenders —particularly those who use violence—a prison sentence will usually be the appropriate punishment, but where a custodial sentence might not be appropriate, the public must have confidence in the alternatives. A community order that is not perceived as a credible sanction or a fine that is not paid simply brings the criminal justice system into disrepute.

The provisions in part 2 will change that. For the first time, the courts will be required to include a punitive element in every community order. They will also be able to impose a new electronic monitoring requirement, which makes use of global positioning system technology to monitor an offender’s whereabouts. This will protect the public by deterring crime and assisting with detection. Alongside that, the Bill provides for courts to defer sentencing after conviction to allow time for restorative justice. We know that around 85% of victims who participate in restorative justice conferences are satisfied.

[Mr Robert Buckland (South Swindon) (Con)]

I warmly welcome the provisions relating to restorative justice. Will my right hon. Friend remind the House that restorative justice will work properly only if the victim is involved and consents to it? In many serious cases, restorative justice will not be the right option.

[Mrs May]

My hon. Friend makes an important point. It is essential that the victims are comfortable with going through the restorative justice process. The figures show that around 85% of victims who participate are satisfied with the response, but it is important that no victim should feel that restorative justice is being in any sense imposed on them. It must be something that they are willing to go through—he is indeed right about that. Restorative justice can also support rehabilitation by helping offenders to realise the consequences of their wrongdoing. This provision will help to put victims at the heart of justice.

At the same time, we are strengthening the ability of the Courts Service to exchange information with Her Majesty’s Revenue and Customs and the Department for Work and Pensions, so that the courts have the income and benefits data they need to set fines at a level that properly reflects the means of the offender and supports the enforcement of those fines. We are also making it clear that the courts can take account of an offender’s assets when determining the level of a fine, which will ensure that criminals who seek to disguise their wealth are made to pay their dues.

Finally, the provisions in part 2 will bring the judiciary into this century by ensuring that it reflects the communities it serves. Progress has been made in recent years, but it has been slow. Just over one in five judges in our courts are female, and the proportion of black and ethnic minority judges hovers at around just 5%. We need to do better, particularly at the upper echelons of the judiciary. The Bill therefore includes a number of provisions to encourage progress in this area, including provision for part-time and flexible working in the Supreme Court and Court of Appeal. At the same time, we are providing that where there are two candidates of equal merit, preference may be given to a candidate from an under-represented group.

[Keith Vaz]

I am most grateful to the Home Secretary for giving way to me a second time. I warmly support what she is proposing. Some of us have been campaigning on the issue for a number of years. I think this will have an effect and will change the nature of the judiciary in this country. I hope, however, that one other issue will also be followed up. I see the Lord Chancellor sitting next to the Home Secretary, and I want to raise the issue of feedback. When in the past ethnic minority and women candidates have applied and been turned down, they have not received effective feedback on how to develop their career in the judiciary. It is not just about changing the law; it is about changing the practices of the Judicial Appointments Commission and the Ministry of Justice to make sure that people have this information.

[Mrs May]

The right hon. Gentleman raises what I think is an important point, and I can assure him that the Lord Chancellor has heard what he said, and will reflect on those comments and look into that particular issue.

As we bring our courts into the 21st century, our laws must follow suit. Part 3 provides—

[Mr Bellingham]

Before my right hon. Friend moves on from part 2, may I ask her for a quick bit of advice? Does she agree that the single family court idea is a very good one? Does she agree that one crucial part of family law is the need for more mediation? Can she assure us that mediation will be built into the system in as many places as possible?

[Mrs May]

I thank my hon. Friend for those remarks. The introduction of the single family court is an important measure. I believe that it will get over previous problems with variations in approach and application, which is significant. It has long been my view that, as far as possible, we should encourage mediation—I know it is being looked at by the Ministry of Justice—and it could be a way of reducing the antagonism and bitterness that, sadly, happen all too often when matters get into the courts rather than being dealt with beforehand through mediation.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Before my right hon. Friend moves on from part 2, does she agree that it is bizarre that in 2013 we have this Victorian situation whereby each county court represents its own individual personality? I welcome the changes in the Bill, but will she lean over and ask her right hon. Friend the Justice Secretary whether we will move quickly on this issue to improve justice in the county courts and to cut costs?

[Mrs May]

Yes, we will do everything we can to improve efficiency in the system and we will look at the whole issue of individual county courts versus a national county court system, as it were. This is part of the Bill. My hon. Friend makes a valuable point about the personalities of county courts.

Part 3 provides for a new drug-driving offence. Over the past 40 years, the drink-driving laws have played an important role in making our roads safer. There is already an offence of driving while impaired through drugs, but it is difficult to secure a conviction, given the need to prove impairment. Drugs were a contributory factor in about 3% of fatal road incidents in Great Britain in 2011, resulting in 54 deaths. This compares to 9% or 166 deaths from drink-driving. We need to adopt the same robust approach to drug-driving as we do to drink-driving.

[Gavin Barwell (Croydon Central) (Con)]

rose—

[Dr Huppert]

rose—

[Mrs May]

I will give way to my hon. Friend the Member for Croydon Central (Gavin Barwell), whom I was about to commend.

[Gavin Barwell]

In that case, I should have waited before intervening. I first raised the issue of drug-driving at Prime Minister’s Questions on behalf of my constituent Lillian Groves, who was killed outside her home property by a driver under the influence of drugs. The Prime Minister met Lillian’s family, and on their behalf, I would like to thank him, as well as Home Office, Justice and Transport Ministers, for the speed with which they have enacted the change in law that the family was looking for.

[Mrs May]

I thank my hon. Friend for his comments, and I commend him for the campaign he has led on this issue, following the death of his constituent Lillian Groves. He has been resolute on this issue, and I am pleased that we have been able to find a vehicle through which to bring forward this new offence so quickly. The Bill introduces an offence of driving with a concentration of a specified controlled drug in the body in excess of the specified limit for that drug.

[Dr Huppert]

I thank the Home Secretary for giving way to me a second time. Much depends on what the aim is and how the specified limit should be set. Will she confirm that the aim is to set a level for drugs that is equivalent to the current legal alcohol limit in the blood of 0.08%, and to measure the drug concentration that would indicate the same level of impairment? Is my understanding correct?

[Mrs May]

My right hon. Friend the Transport Secretary and I are currently considering the controlled drugs to be covered by the offence and the limits that should be set for such drugs for driving purposes. As a Government, we have taken a robust, zero-tolerance approach on illicit drugs through the drugs strategy. As we consider the detail of this policy, we will want to send an equally strong message that people simply cannot take illegal drugs and drive.

[Mr David Burrowes (Enfield, Southgate) (Con)]

I particularly commend the provisions on drug-driving. Given the problems I have seen as a practitioner, I am aware of the difficulty of proving the offence. Has consideration been given to further extending provisions beyond controlled drugs to include the impact of psychoactive substances, not least legal highs? We know of the impact they can have in terms of impaired driving, so has consideration been given to broadening the nature of the offence in this provision?

[Mrs May]

As I said in response to my hon. Friend the Member for Cambridge (Dr Huppert), the Secretary of State for Transport and I are looking at what should be covered by this offence, taking into account the drugs that can be identified and the levels that should be set for them. The Department for Transport is taking expert advice on what it is possible to identify within the bloodstream and within people’s bodies at the time that tests are taken.

I know that legitimate concerns have been expressed about the impact of this offence on those who take controlled drugs on prescription—for long-term pain relief, for example—but we have no intention of preventing people from driving where they are taking medication in accordance with medical advice, so the Bill includes provision for a medical defence. We will also want to take into account views expressed in response to the required consultation on the draft regulations, but I believe we must take a strong stand against those who would put other lives at risk by driving under the influence of drugs.

The Bill also delivers on our coalition commitment to ensure that the law is on the side of people who defend themselves when confronted by an intruder in their home. Few situations can be more frightening than when someone’s own home is violated. Faced with that scenario, a person will do what it takes to protect themselves and their loved ones. They cannot be expected dispassionately to weigh up the niceties of whether the level of force they are using is proportionate in the circumstances. If the intruder is injured, perhaps seriously, in such an encounter, the householder should not automatically be treated as the perpetrator where, with hindsight, the force used is considered to have been disproportionate. Clause 30 will ensure that, in such a context, the use of disproportionate force can be regarded as reasonable, while continuing to rule out the use of grossly disproportionate force.

I know this change in the law will be particularly welcomed by my hon. Friends the Members for Newark (Patrick Mercer), for Thirsk and Malton (Miss McIntosh) and for North West Cambridgeshire (Mr Vara), who have campaigned on this issue for a number of years. I congratulate them on having successfully brought this issue to the attention of Parliament and the public.

Let me now deal with clause 38, which would remove the word “insulting” from the offence of using threatening, abusive or insulting words or behaviour in section 5 of the Public Order Act 1986. This was added to the Bill in the other place. I respect the view taken by their lordships, who had concerns that I know are shared by some in this House about section 5 encroaching upon freedom of expression. On the other hand, the view expressed by many in the police is that section 5, including the word “insulting”, is a valuable tool in helping them to keep the peace and maintain public order.

There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions. The Government support the retention of section 5 as it currently stands, because we believe that the police should be able to take action when they are sworn at, when protesters burn poppies on Armistice day and in similar scenarios. We have always recognised that there are strong views in both Houses. Looking at past cases, the Director of Public Prosecutions could not identify any where the behaviour leading to a conviction could not be described as “abusive” as well as “insulting”. He has stated that

“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”

On that basis, the Government are not minded to challenge the amendment made in the other place. We will issue guidance to the police on the range of powers that remain available to them to deploy in the kind of situation I described, but the word “insulting” should be removed from section 5.

[Mr Edward Leigh (Gainsborough) (Con)]

I warmly congratulate my right hon. Friend. Many of us have been campaigning on this issue for years, and the Government have listened—well done.

[Mrs May]

I thank my hon. Friend.

Finally, let me give the House notice of another set of amendments that we will table in Committee. Members will recall that on 16 October, when I made a statement on our extradition arrangements, I indicated that I would present legislation as soon as parliamentary time allowed to make two key changes to the Extradition Act 2003. The first would introduce a new forum bar to extradition, and the second would transfer to the High Court the Home Secretary’s responsibilities for considering representations on human rights grounds. I have decided that we should seize the opportunity provided by the Bill so that we can give effect to the changes as soon as possible.

I am grateful to the House for allowing me to explain those key provisions. The Bill will build on our reforms of the policing landscape by delivering an effective national response to serious and organised crime and securing our borders, while also strengthening public confidence in the justice system. Its provisions are timely and important, and I commend it to the House.

[Several hon. Members]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. A time limit will be announced after the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) has finished her speech. Members who are preparing the length of their speeches in their heads should think in terms of not much more than 10 minutes.

18:01

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Home Secretary has made some big promises about the Bill today. She has said that it will transform the fight against organised crime—indeed, to hear her speak one would think that there was no fight against organised crime before the Bill was drawn up—and that it would solve the problem of economic crime, transform punishment and rehabilitation, stop illegal immigration, and save money, all at the same time. One might think that this Bill alone would persuade all dangerous criminals to stop in their tracks and embark on a life of charity work.

You will forgive Labour Members, Mr Deputy Speaker, if we express a bit of scepticism about the claims that the Home Secretary has made—although we support many of the measures in the Bill—because we have heard such promises about her legislation from her before. When she stood before us to present one Home Office measure, she told us:

“With a strong democratic mandate from the ballot box, police and crime commissioners will hold their chief constable to account for cutting crime.”—[Official Report, 13 December 2010; Vol. 520, c. 708.]

That “strong democratic mandate” turned out to be 15% of the public voting and 3.6% voting Conservative. Introducing the terrorism prevention and investigation measures, she promised that

“public safety is enhanced, not diminished, by appropriate and proportionate powers.”—[Official Report, 7 June 2011; Vol. 529, c. 69.]

As a result of those measures, terror suspect Ibrahim Magag is now on the run, and unless the Home Secretary has any more information with which to update the House, we must assume that she, and we, still have no idea where he is. He was last seen getting into a black cab.

The Home Secretary told us:

“it’s clear… that we can improve the visibility and availability of the police to the public.”

She also said that

“lower budgets do not automatically have to mean lower police numbers”.

The result has been 15,000 fewer police officers, and Her Majesty’s inspectorate of constabulary has concluded that the police are less visible and less available too. So we start with a certain caution about the promises that the Home Secretary has made. The Bill does not live up to the billing that she has given it. Even when the intentions are good, there are areas in which the detail does not stack up, and Labour Members believe that she is still missing an opportunity to change course on some of the wider policies that are making it harder for the police to keep the public safe.

Parts of the Bill are very valuable. We believe that more can and should be done to strengthen the fight against serious and organised crime, and that more can and should be done to introduce greater diversity into the judiciary. I welcome the points that the Home Secretary has made about that. We also support stronger action against drug-driving. People who drive dangerously, and even kill and maim, on our roads because they have taken illegal drugs and cannot control their cars should be caught and prosecuted. We also think it right for gang injunctions to be imposed by the youth courts; and it is certainly about time we did away with the offence of scandalising the judiciary. My hon. Friend the Member for Darlington (Jenny Chapman) will comment on many of those justice issues when she responds to the debate.

Let me say a little more about the central reforms in the Bill. The central measure is intended to strengthen the Serious Organised Crime Agency and to rename it. In fact, the vast majority of the National Crime Agency’s work will be what SOCA does now. We agree that SOCA should be strengthened: it has done very important work, but given the changing patterns of national and international crime, it should have more powers and scope. The valuable work that it has done so far, which the Home Affairs Committee has looked at, includes achieving a conviction rate of more than 90%, and bringing to justice people involved in the organising of illegal immigration, drug trafficking, slavery and cybercrime. However, the police need to do more in certain key areas in which action by individual forces alone is not sufficient, including serious organised crime—which can cost up to £40 billion a year—and people trafficking. The number of international and cross-border crimes has been growing. Economic crimes cost an estimated £38 billion a year, and new offences such as cybercrime are becoming increasingly complex to handle.

[Keith Vaz]

Does my right hon. Friend agree that one of the worrying things about SOCA, despite its success in many respects, was that it seized less than it cost overall? It is important not just to create organisations such as the National Crime Agency, but to benchmark them to ensure that they meet the expectations of the public and Parliament.

[Yvette Cooper]

I agree with my right hon. Friend. Evidence given to his Home Affairs Committee by the new head of the National Crime Agency suggested that it did not necessarily expect to increase the amount that it seized, so we shall want to monitor its work closely. As my right hon. Friend says, it is likely that more action will be expected. We think that more can be done overall by all police forces, particularly in regard to matters such as the proceeds of crime and child exploitation. The recent Savile case shows quite how much needs to done throughout society to increase protection and prevention.

We agree that more action is needed in each of those areas, and the Bill provides an opportunity to ensure that more action is taken, but if we look at each area in turn it is not clear to us that the Home Secretary’s proposed measures will be sufficient. She has said, for example, that the National Crime Agency will be able to do more to deal with international crime, but in fact its hands will be tied. She wants to pull out of European co-operation on justice and home affairs. She is keen to opt out of the European arrest warrant, and wants to ditch the sharing of data with other European police officers on sex offenders who travel across borders. The arrest warrant has been used to bring back 39 people suspected of serious child sex offences, 65 people suspected of drug trafficking and money laundering, and 10 people suspected of human trafficking. Those are the very criminals whom the National Crime Agency is supposed to pursue.

It would be helpful if the Home Secretary, or the Minister who responds to the debate, told us how many of the police officers and crime experts who are currently working on international and cross-border crime support the plans to opt out of European co-operation, and how many of them think that the work of the National Crime Agency will be easier or harder if the Government opt out.

[Mr Djanogly]

On the basis of the right hon. Lady’s rationale, I assume that she will be very pleased by the introduction of the single family court. There will be a single point of entry between the courts, and judges will work together in those courts so that the child cases to which she has referred can be dealt with better and faster.

[Yvette Cooper]

I think that the reforms of family courts will have a great many benefits. They are the result of independent reviews, and a considerable amount of work over some time, to establish how those courts can be improved, particularly from the point of view of the children involved. We certainly support measures in the family courts that can improve support for children, including child protection.

There are clearly problems on the international front in regard to the work that the NCA will do. Let me now deal with some of the issues on the domestic front. The Home Secretary has said that she wants to strengthen national action against serious crimes, but, as was pointed out by the Chair of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), the new National Crime Agency faces increased responsibilities with a budget 20% lower than that of the Serious Organised Crime Agency. It will supposedly do everything that SOCA did while picking up new responsibilities from the National Policing Improvement Agency, doing extra work at Britain’s borders, and expanding work on tackling cybercrime and on tackling economic and financial crime. It is going to do this with, by my assessment, a cut in the budget of at least £80 million—as the Home Affairs Committee Chair has suggested, the budget cut could be considerably more.

The detail of how the NCA will work remains confused. We still do not know how it will relate to the new police and crime commissioners, who will not be consulted on the NCA’s strategic priorities but whose forces will have to respond and do what the NCA says. Legally, the Bill provides for the NCA to direct chief constables over resources and priorities in their areas, but can a police and crime commissioner who disagrees sack the chief constable? How will this be resolved? What will the relationship be between the NCA, the UK Border Force and the UK Border Agency? Will the NCA be able to task border officials in the way that it will be able to task chief constables, or is the border command to be simply a co-ordinating committee? Questions are also unanswered in relation to the economic command. What will the relationship be with the Serious Fraud Office and with the City of London police on economic crime? Will the NCA be able to set tasks for the SFO, or is the economic command just another co-ordinating committee?

None of those things is clear. The Home Office has promised that many of the questions would be answered by the framework document, yet it still has not been published. Under pressure from their lordships, the Home Secretary has finally published an outline framework document, but it is hardly illuminating; all it gives is a list of bullet points. For example, it contains the heading:

“Accountability to the Home Secretary”.

Under that heading the bullet point simply reads:

“How that accountability relationship will be supported by Home Office officials”.

That is all it says, so this is not a framework document; it is simply a Home Secretary to-do list.

Again, we are being given a lack of detail, even though we know that detail matters. The Home Office’s failure to provide the detail in debates in this House on previous legislation has caused considerable problems; one such example was the failure on detail that meant that £350,000 had to be spent reprinting the ballots for the Welsh police and crime commissioner elections.

Big policy areas are also not being addressed here. The Child Exploitation and Online Protection Centre is being absorbed into the NCA, despite the reservations of many experts. More importantly, the Home Secretary is missing the opportunity to strengthen the work on child protection and tackling sexual exploitation at a vital time, and to set up an overarching review, led by child protection experts, into how Jimmy Savile was able to get away with terrible abuse of children over many years.

The Home Secretary also referred to the counter-terror measures raised in the House of Lords, where her proposal to transfer counter-terror from the Met to the NCA has raised considerable alarm. I welcome her saying that she will consider the points raised on whether that should be done in primary legislation rather than in secondary legislation. The former Met commissioner Lord Blair said:

“in my lifetime no change more significant than this in the policing arrangements to protect our nation has ever been contemplated…Such a decision deserves primary legislation”.—[Official Report, House of Lords, 27 November 2012; Vol. 741, c. 115.]

Former Met commissioner Lord Condon has said:

“This is a hugely important matter that deserves primary legislation rather than an affirmative order…History tells us that more than 80% of terrorist incidents in this country happen in London.”—[Official Report, House of Lords, 27 November 2012; Vol. 741, c. 116.]

Of course, even more of the counter-terror problems will lie with the Met now that the Home Secretary has removed relocation from control orders.

[Mrs May]

May I just correct the right hon. Lady on one point she made? She said that this Bill dealt with my “proposal” to move national responsibility for counter-terrorism policing from the Met to the NCA. I made it clear in my speech that I have no preconceived idea on this matter, but as we set up a national crime agency to deal with serious, organised and complex crime it is right that the question be asked, when that agency is up and running, about where it is appropriate for counter-terrorism policing to lie. That will take place after a proper review. As I say, I have no preconceived idea about this, so it is not the case that this Bill deals with a specific proposal.

[Yvette Cooper]

I must then say to the Home Secretary that she does not need to legislate for it now. If she has genuinely not made a decision, why take pre-emptive legislative powers for a decision she has not yet taken and a review she has not yet done? She will know that the nature of the Home Office means that Home Office legislation is always being introduced, and there will be plenty of opportunity for primary legislation and a proper debate in this House and in the other place. How are Members of this House and Members of the House of Lords, where, as she knows, there is considerable expertise on counter-terror and on policing, supposed to debate a hypothetical proposition—she now says she has not yet made it—and a decision she has not yet reached? It would be far better to respect the expertise in the other place and the views of this House by not legislating now on this matter, by holding a proper review, and by having that genuine debate on it and then coming back to the House with proper proposals in primary legislation, if she so concludes that it is the right thing to do.

We will also wish to discuss other areas of the Bill in Committee. I hope that the Home Secretary will also now accept the Lords amendments on the regulation of bailiffs, adding safeguards to prevent abuse. We also hope that she will support our proposals to go even further with stronger powers for immigration officers to tackle illegal immigration. She has raised the issue of the forum bar, on which she wishes to introduce amendments, and we hope that extensive discussion can take place on that. We have discussed it briefly when she has made statements to the House before and we are keen to work with her on how to make that bar effective. As she knows, some legislation is already on the statute book on this issue, but all sides have found it difficult to work out how to make the detail work. We therefore look forward to those discussions.

We also wish to discuss stronger checks and balances for the NCA through the Independent Police Complaints Commission. The safeguards in respect of the IPCC looking at the NCA are astonishingly weak in the Bill, and we hope the Home Secretary will strengthen them. She will also know from the points that hon. Members have made that there is concern about visa appeals. The point she needs to consider is that in a third of cases looked at by the inspector the entry clearance officer had not considered the evidence properly. That was not about new evidence; the entry clearance officer had not considered the existing evidence properly. So there is a serious concern about the quality of the initial decision making.

We also want to deal with the issue of section 5 of the Public Order Act 1986. I hope that before that comes up in Committee the Home Secretary and her Ministers will be able to provide the House with an assessment of the impact of section 5 on different groups, particularly vulnerable and minority ones. Many people have said that the existing section 5 has formed some kind of protection for them, so it would be helpful to know that before we reach that point in Committee.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does that mean the Labour party does not share the welcome voiced by the two parties on the Government Benches for the Government’s acceptance of clause 38 and the removal of the word “insulting” from the Public Order Act?

[Yvette Cooper]

Like the Home Secretary, I have always questioned whether there was a case for removing this measure in the first place. If she has carried out further analysis and believes it can be removed while maintaining protection for groups that might be discriminated against or where the police need to have the flexibility to respond effectively, we would be keen to see that evidence before we get to Committee. It is important to ensure that we protect freedom of speech, but it is also important to ensure that we can protect vulnerable groups from unfair discrimination.

[Dr Huppert]

rose—

[Mr Leigh]

rose—

[Yvette Cooper]

I will give way, but I say to hon. Members that this issue will be covered in Committee.

[Dr Huppert]

Has the right hon. Lady seen the letter from the Director of Public Prosecutions highlighting the fact that there has been no prosecution using this provision that could not have been achieved in other areas? There is a big difference between insulting and abusive action, and if there is no risk to prosecutions free speech can be safely defended in this case.

[Yvette Cooper]

I am aware of the points the DPP has made, but I simply ask, because this is important, that the Government undertake an equality impact assessment on the impact on different groups, in order to be sure that they are doing the right thing before this matter reaches Committee.

[Mr Leigh]

It is not clear what the Labour party’s official position is. This consultation has gone on for more than a year, and everybody knows the arguments one way and the other. The Labour party opposed clause 38 in the other place, so what is it going to do in Committee?

[Yvette Cooper]

As did the Government in the other place, and we look forward to their evidence on this measure’s impact on different minority groups.

The problem with the Bill is that it will not deal with the wider difficulties facing policing and the perfect storm of the Home Secretary’s making that we now face. At a national level, she has abolished the NPIA without any clue about what to do with its functions. We now have the National Crime Agency, the College of Policing, NewCo—the new IT company—police and crime commissioners and police and crime panels, but we have no clear view of how any of them will work together. The Bill does not set out how that clarity should be provided.

At the same time, the Home Secretary is cutting 15,000 police officers—the very people who need to do the job of fighting serious and organised crime in every community. The number of young police officers as new entrants has dropped by 50%, yet the most experienced officers are going too. Half of all police forces do not have a permanent chief constable and the officers left in the middle are facing a crisis of morale, with 95% saying that they believe that the Government and this Home Secretary do not support them.

Fewer criminals are being arrested and fewer are being prosecuted, international co-operation is being undermined and counter-terror powers are being weakened; now there is confusion over these reforms. I hope that the Home Secretary will make further improvements to the Bill, but, more importantly, I hope that she will rethink her wider policy on policing and crime before it is too late.

[Several hon. Members]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. We will start with a 12-minute limit on speeches, although that does not mean that Members have to take 12 minutes, of course. That limit may well be reduced later this evening.

18:20

[Rebecca Harris (Castle Point) (Con)]

I want to support some of the many excellent provisions in the Bill, and in particular the inclusion of drug-driving as an offence on which the police can act at the roadside in a proportionate and simple manner. There have been many such cases of which I have been made aware and I congratulate my hon. Friend the Member for Croydon Central (Gavin Barwell) on having campaigned on the issue with great success.

I am disappointed that the Government have not taken the opportunity to go slightly further and consider road traffic offences more generally, including the laws on those who drive while medically unfit. Of course, the problems caused by drug-drivers and those who drive while medically unfit are incredibly similar from a public safety point of view. In both cases it is an offence to drive, but the law is not effective in preventing the problem.

Arguing for the drug-driving offence in another place, Lord Henley recognised that although being unfit through drugs is an offence, it is not prosecuted often enough because of the difficulty the police have in trying to prove that the driver is sufficiently impaired. That has hampered the police in taking drug-impaired drivers off our roads and the new provision will give the police a proportionate power to do so and punish them appropriately for endangering the public.

I do not consider those who drive while unfit for medical reasons in the same category as drug-abusing drivers; nor do I believe that they should necessarily be punished as severely as they might be under the Bill. Drugged and drunk drivers have made a decision to incapacitate themselves, whereas those driving while unfit for medical reasons might not have done. The effect on our roads is the same, however, as that driver is incapacitated while driving a vehicle that can kill.

The police should have the power to take a licence away or prevent someone they believe to be unfit to drive from doing so until it can be established otherwise. We know that 1,100 casualties and 50 deaths are caused every year by drug-driving, but I cannot quote the number of casualties on our roads caused by people driving while they are medically unfit—for example, because their eyesight is impaired—because we do not record the figures. In my short time as a Member of this House, however, several tragic cases have been brought to my attention.

One such case was brought to me by one of my constituents, whose niece, Natalie Wade, died on the way to buy her wedding dress, mown down by a driver who categorically knew he was unable to see appropriately to drive but continued to do so. He refused to recognise his obligation to report that to the Driver and Vehicle Licensing Agency, which is what we require medically unfit drivers to do. Hon. Members might also be aware of the case of a lady called Cassie McCord, who was killed by a driver with impaired eyesight who had been stopped three days earlier by the police. The police were unable to prevent him from driving, he continued to do so and she died when he ran her over only three days later.

We do not stop such people driving but we need to avoid these preventable deaths. The very least we could do is allow the police to do their job, and when they recognise that individuals are clearly unfit to drive for whatever reason—drug-driving or medical impairment—we should allow them to act.

[Dr Huppert]

The hon. Lady is making an extremely good point and she is absolutely right to say that we must focus on the level of impairment, not the cause. If it is a question of road safety, we must focus on a solution whereby people who are unfit to drive for medical reasons or because of drugs or alcohol that they have recently consumed should be unfit because they have reached a threshold of impairment, not because of the cause of that impairment.

[Rebecca Harris]

Someone who is apprehended by the police because their driving is impaired by alcohol can have their vehicle taken from them at the roadside, and the new provisions will go a long way towards ensuring that that happens more often with drug-driving and that we can prosecute drug-drivers more readily and more easily. If a person fails a roadside sight test, however, such as that which one needs for a driving licence, it is impossible for the police to take their keys and require them to have an eye test. Perhaps we could extend the scope of the Bill—I hope in Committee that we can take the provision one step further and consider those who are medically unfit to drive, for whatever reason.

18:25

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

My earlier ministerial responsibility in the Home Office tempts me to say a great deal about the Bill, which I recognise as a classic Home Office Christmas tree Bill. If time allowed, I would want to say more about why I believe clause 30 to be completely unnecessary, given the repeated assurances of the police and Crown Prosecution Service that if householders act instinctively and honestly in defending themselves they will always find the law on their side. I would also want to say a little more about my views on clause 38, although the Home Secretary has confirmed the Government’s position on that. I welcome that decision—[Interruption.] I gather that my welcome is welcomed, but I doubt that the sky will fall in as a result of the Government’s decision. We shall see.

In the time available, I want to focus on two particular areas. The first concerns clause 31 and schedule 15, which deal with non-custodial sentencing. I support part 4 of schedule 15, which deals with electronic monitoring. Tagging continues to play an important part in the criminal justice system, but there is a case for extending electronic monitoring beyond that and including location monitoring. In certain cases, the technology is available, at a cost that is coming down all the time, to allow individuals who pose a threat to others or the wider community to be monitored. I hope that the Home Secretary and other Ministers will take the new power when it is enacted and use it imaginatively to enhance public protection.

I have less problem than some of my good friends in the House of Lords with making it mandatory for community sentencing to have a punitive element. The Home Secretary is right. If victims and the public at large are to be expected to have confidence in community sentencing and if we are to ensure that prison is reserved for the serious and dangerous offenders, the public will expect a punitive element to that sentencing. Great care should be exercised, however, and it is important that the Minister should offer assurances tonight and in Committee about the care that is being taken to ensure that the punitive element is purposeful and offers protection for vulnerable offenders, particularly those who suffer from mental health problems. It is entirely possible for a punitive element to be rehabilitative at the same time. When we make such provisions, we need to trust the sentencers to ensure that they get the balance right between all the different principles of sentencing in each individual case.

I welcome part 7 of schedule 15, which could be renamed the Corston clause. It requires that special provision should be made for female offenders. We have talked about that for a long time and Baroness Corston did some amazing work in her report. She, like many others, continues to advocate that provision and part 7 gives legislative enforcement to her recommendations.

I am strongly in favour of part 2 of schedule 15, which covers the deferral of sentence to allow for restorative justice. We are all increasingly agreed that if an apology, explanation or some form of reparation can be offered to a victim of a crime that helps them to rebuild their lives following the trauma that they have had to face, we should all support that. That is at the heart of what restorative justice is all about. More detail is needed, and I hope that in Committee Members will have the opportunity to explore in more detail what might be required to use the provisions in the Bill as a launch pad for further development.

The Bill sets a time limit of up to six months for the deferral. That is too vague. I draw the Home Secretary’s attention to the Northern Ireland Youth Conference Service, which requires a deferral of four weeks only. Within that four-week period, a restorative justice conference must take place and a plan must be drawn up and brought back to the court. I can tell the Home Secretary that in 97% of cases, that task is performed and completed within the four-week period. There is a 70% victim participation rate and a 90% victim satisfaction rate. I commend that to the Home Secretary and I hope that in Committee the time scale issue can be given closer attention. It should be made clear in the Bill that victims have a right to attend a restorative justice conference. It should not be left to local discretion or priority; it should be clear in the legislation.

The Minister for Policing and Criminal Justice will need to say more about how he intends to make sure that consent is obtained, particularly if deferral is being considered at the end of a trial which has been difficult, when emotions are raw and an understanding of restorative justice may not be at the forefront of people’s mind, especially if someone has been the victim of a crime. We need a better understanding of how consent is to be obtained, because the consent of the victim is crucial to the process.

The Minister also needs to make it clear, perhaps in the Bill as well, that restorative justice is not just for minor offences or for cases on the cusp of custody. Restorative justice offers extensive capability and opportunity, right across. I confess that I was sceptical about whether restorative justice could be used in, for example, serious sexual offences, but having met and heard a victim of rape speak about her restorative justice process and how it had helped her to rebuild her life, I think we should set no limits on the use of restorative justice if the victim of the crime feels that it can be helpful to them in rebuilding their life.

We need to understand how the deferral process interacts with other objectives which the court might have—for example, setting time limits on delay. We could not have a court that was making good use of restorative justice being penalised because that was leading to delay in the outcome of the court process. We await further detail from the Minister about how that will happen.

My final point in relation to schedule 15 and the restorative justice element, about which I hope we will see more detail as the Bill is considered by a Committee, is that all this must be underpinned by appropriate training and quality standards for restorative justice right across the country. The Restorative Justice Council, to which I pay tribute for the tremendous work that it has done over a number a years, is leading this work, and I know that Ministers respect and appreciate the work that it is doing. I look forward to hearing assurances from the Minister that the Restorative Justice Council will have the resources, status and support necessary to make sure that at long last restorative justice can be brought from the margins of our criminal justice system firmly into the mainstream.

The other issue that I wanted to touch on in my brief remarks relates to part 1, the creation of the National Crime Agency. I am not against the creation of the National Crime Agency. I want to see a powerful agency co-ordinating and leading the fight against organised crime, but having read the Bill, I do not see the great advantage—the great move on—that the legislation is going to bring about, over and above what we have already. Of course we want an agency that can defeat organised criminal gangs and take their criminally gained assets away from them, but we already have that with the Serious Organised Crime Agency. The Home Secretary was completely wrong to dismiss the efforts of previous Governments, as if they had never made any attempt to counter organised crime. That is nonsense, and if the right hon. Lady is honest with herself, she knows that.

When the Serious Organised Crime Agency was launched in 2006, it had two key issues to address in respect of its organisation. One was to bring the staff together from four different organisations and later from the Assets Recovery Agency. The second was to build operational relationships with the police. Anybody who has followed this over the years knows that it has not been plain sailing all the way, but a huge amount of progress has been made. There should be much greater ministerial acknowledgement of that and the good work that the Serious Organised Crime Agency has done—a base from which the National Crime Agency can begin to build in the future.

There are three specific issues that I want to touch on. The first is about the so-called super-affirmative order. I firmly support its removal from the Bill, which happened in the other place. There is a judgment and a decision to be made about who should be in the lead on counter-terrorism. It rests with the Metropolitan police, and if there is to be a change, the Home Secretary should come to the House and argue for and justify that change. I find it ironic and incomprehensible that the Home Secretary, who thinks that enhanced terrorism prevention and investigation measures and any decision about extending beyond 14 days the period of pre-charge detention should be allowed only through primary legislation, was proposing to give herself through secondary legislation such a key strategic decision. I encourage her to leave the Bill as it is and not to be tempted to seek secondary authorisation through the Bill.

Clause 4 sets out the operational relationships between the National Crime Agency and other organisations. This should be extended to key strategic relationships, not least with police and crime commissioners now that they are established in England and Wales.

My final point is about the Child Exploitation and Online Protection Centre, which I was proud to launch in 2006—a unique partnership between children’s organisations, law enforcement and those who operate in the internet industry. When the consultation began, which the Home Secretary started, many feared that the National Crime Agency would mean a downgrading of the Child Exploitation and Online Protection Centre. We have had firm assurances and the explanatory note, and the Home Secretary herself has spoken about the four commands, one of which is the child exploitation and online protection command. I have yet to be convinced of why that requirement should not be in the Bill. If there is to be a change, it should not be left to a Minister or to the director general of the National Crime Agency. If there is to be any change to CEOP, it is this House that should have the final word.

18:37

[Sir Edward Garnier (Harborough) (Con)]

It is always a pleasure to follow the right hon. Member for Wythenshawe and Sale East (Paul Goggins). He made a characteristically thoughtful speech and we have much to learn from it. I agree with a great deal of what he said, particularly in relation to restorative justice. Like him, I have been to a great many prisons in England and Wales. I have been to about 65 of the 142 that we have in this country and in Wales. Where there was restorative justice, there was a great deal of satisfaction for the victims of those crimes, as well as better behaviour from the criminals. It is important that we get the right people involved in restorative justice, but I commend it as a principle.

The right hon. Gentleman mentioned the Home Office’s proclivity for producing Christmas tree Bills. I would rather flippantly say that the Home Office has produced more Christmas trees than Norway over the past 30 years or so, and the Bill is another fine example. I do not want to denigrate this particular Christmas tree, even though we are well beyond 6 January, because one aspect of it is particularly to be commended. That is the bit that I invented. I refer to clause 32. It is the shortest clause in the Bill and it reads:

“Schedule 16 makes provision about deferred prosecution agreements.”

The right hon. Gentleman, when dealing with restorative justice, referred obliquely to the second shortest clause in the Bill, clause 31, but that is 300% longer than the clause that I am talking about.

Neither the Home Secretary nor the shadow Home Secretary thought it appropriate to talk about deferred prosecution agreements, and why should they? They have plenty of other things to talk about in detail—[Interruption.] I am sure the Home Secretary would like me to correct what I said. Yes, she did mention the subject in passing. I shall mention it in the few minutes left to me, but in rather more detail than she had time to do. Before doing so, I declare my interest as a practising member of the Bar.

Corporate economic crime damages the British economy in monetary and reputational terms, and we are not dealing with it effectively. That is not to say that everything in the past has been hopeless or a waste of resources, but it is time for us to do things better.

Since our Government came into office in May 2010, we have made structural changes to improve our strategic capability. We have a new director of the Serious Fraud Office in David Green, a relatively new chief constable of the City of London police, Adrian Leppard, and there is a new focus on economic crime in the Crown Prosecution Service and the Financial Services Authority, which is soon to change its name. During my two or so years in government, it seemed to me that we needed to do something more and that we should think seriously about introducing deferred prosecution agreements, which are an American procedure.

DPAs will be not a substitute for either investigations or prosecutions of companies, but an additional and much-needed weapon in the prosecution’s armoury that provides the flexibility to secure appropriate penalties and better outcomes for victims. They are modelled on a long-established system in the United States, but they will be adapted to suit our criminal justice system with far more judicial oversight. In the United States federal courts, DPAs are concluded and promulgated with little, if any, judicial oversight, but when I spoke to judges in America last spring, it seemed to me that those judges were beginning to chafe at the inadequate role that they play in this aspect of the American criminal justice system. The first thing that I learned when I was in America was that we need to engage our judges in this new means of dealing with economic crime.

We are not talking about non-prosecution agreements or other forms of non-criminal—and therefore civil—action to deal with economic crime; we are simply talking about deferment. The right hon. Member for Wythenshawe and Sale East talked about the deferment of penalties; this is about the deferment of prosecutions of corporate entities, companies, partnerships and unincorporated associations.

Law enforcement agencies say that they do not have the tools that they need to tackle increasingly complex economic crimes. Serious Fraud Office investigations can last up to three and half years, with a cost to the agency of approaching £1.5 million, but they do not guarantee success and they leave victims waiting far too long for reparation. A suspect company is disadvantaged by a lengthy and expensive investigation that takes the focus of its management, which is often new, away from the company’s core functions and frequently leads nowhere, save to collateral damage to innocent third parties. On this point, I often cite the example of Arthur Andersen, which became involved in the Enron scandal in the early part of this century. The company collapsed as a consequence of its prosecution by the United States Department of Justice. Some 100,000 people lost their jobs, and pensioners and suppliers to the business were affected. It did not really help that the Supreme Court quashed the convictions some time later because the company had gone and irreparable collateral damage had already been caused to innocent people.

DPAs will allow prosecutors to tackle economic crime—the crimes that will be susceptible to DPAs are set out in paragraphs 15 to 27 of schedule 16, but essentially they are fraud, bribery, money laundering, market fixing and so forth—more effectively and efficiently, but without losing sight of the aims and needs of justice. In appropriate cases, companies will be prosecuted regardless of whether the facts come to light following a police investigation, through self-reporting or via a whistleblower.

A prosecution against a company will be initiated, but continued to trial only if tough requirements, such as the payment of financial penalties and compensation for victims, the recovery of ill-gotten gains and compliance with measures to prevent future offending, policed by independent monitors, are not adhered to within a given period of deferral or suspension. The agreement, and then its precise terms, will have to be formally approved by a senior judge before being announced in open court, which is different from what happens in the United States. The process in this country will very much form part of the criminal justice system and will not permit private deals made behind closed doors.

Prosecutors will come to know of a company’s conduct through investigation by the authorities, via a whistleblower from within the company, or following self-reporting by the company’s board. Discussions will then follow between the prosecutors and the lawyers for the company. Those will initially be confidential. They might take days or even weeks, but they will continue until the picture is clear. The prosecutors will then consider the facts. On the basis of the information in front of them, they will decide to do nothing; to hand the case over to a foreign jurisdiction, if appropriate; to prosecute, if that is in the interests of justice; or to enter into a deferred prosecution agreement.

Unlike the position in the United States, it will not be open to the prosecution and the company simply to agree between themselves the penalty, the compensation, the monitoring regime and the length of the deferment. The draft agreement must be put to a senior judge in chambers at a private hearing to which the press and the public are not admitted. The judge will need to be persuaded that it is in the interests of justice for there to be a DPA, and that its terms are fair, reasonable and proportionate.

Although the judge will not be able to order the prosecution to prosecute to trial, he can, in an appropriate case, refuse to sanction a DPA or its terms. The parties would then need to renegotiate the terms in the light of the judge’s criticism, or the prosecution must consider whether it ought to prosecute in the normal way. In reality, it is unlikely that the parties will go before a judge in a case when only a full prosecution is merited, or with terms that suggest either oppressive or feeble conduct by the prosecution, but the judge must approve the DPA before the case goes any further. If the agreement is approved, the judge moves into open court, the company is publicly identified and the terms of the DPA are promulgated to the world at large. Those terms will be reportable by the press. They will appear on the SFO or CPS websites, and they will be known to the world’s stock exchanges.

If a company fails to comply with a DPA after it has been announced, depending on the nature of the breach, the prosecution may either take the matter back to court, and apply to terminate the agreement and bring a prosecution, or it may apply to vary the terms, such as by increasing the extent of monitoring or the length of the deferment period. If the company complies and shows that it can be trusted to conduct its affairs within the law before the end of the deferment period, the parties may apply to vary the terms, such as by bringing the DPA to an early conclusion or removing the monitor.

DPAs will achieve justice through appropriate penalties and the recovery of the proceeds of crime. When sanctioned by a judge, they will provide benefits for victims without the unpredictability, expense, complexity or time associated with a lengthy criminal court process and trial. A DPA will bring certainty and a speedy resolution. It will enable a company, especially if it is being run by a new board, to clear the decks and make a clean start. DPAs will enable commercial organisations to be held to account, but without the collateral damage that I identified earlier.

Most importantly, given that DPAs will be concluded in open court, the public will know about the wrongdoing admitted by the commercial organisation and its consequences. There will be no question of companies burying their wrongdoing in their annual accounts. Experience from the United States shows that even well-known British companies enter into DPAs with a realisation that they are different from plea bargains or civil recovery orders.

The Director of Public Prosecutions and the director of the Serious Fraud Office will issue a code of practice for prosecutors, which will be publicly available, to guide the decision-making process behind DPAs It is also proposed that the Sentencing Council, the statutory body made up of judges, practitioners and academics that publishes sentencing guidelines, will produce guidelines for economic crimes in the near future so that prosecutors, judges and lawyers acting for errant companies will be able to enter into and conclude DPAs with clarity and certainty about the relevant penalties.

DPAs will not be a “get out of jail free” card. The courts cannot send a company to prison but, under a DPA, it would have to admit its wrongdoing and agree to stringent and wide-ranging terms that are tailored to the facts of the case. The agreements are a means of bringing errant companies publicly to justice swiftly, effectively and economically, and it is time that we brought them into our criminal justice system.

In conclusion, I thank all those in the Attorney-General’s Office who worked with me on this proposal, especially my former private secretary, John Peck, as well as all those in the Ministry of Justice who helped me to bring it forward. I also thank the Home Secretary and the Justice Secretary for getting the provisions into the Bill.

18:49

[Mr Jack Straw (Blackburn) (Lab)]

It is a pleasure to follow the hon. and learned Member for Harborough (Sir Edward Garnier) and to commend the measure that now appears in the Bill.

Ever since the principles of British policing began to be established two centuries ago, there has been a natural and inherent tension between the demand of the British public that policing should be local and the reality that many of the threats that individuals face arise nationally and internationally. The history of British policing in part reflects an effort to try to square the circle of the demand for local control and the reality of national and international threats. When there were 125 police forces in England and Wales alone, the circle was squared by the Metropolitan police having a dual function not only as the force for Greater London, extending far beyond Greater London’s boundaries, taking in a third of Surrey, big chunks of Essex and Hertfordshire, but as a national force as well. For the 30 years following the seminal Police Act 1964, there was a further squaring of the circle by successive Governments, effectively detaching the police from local influence by ensuring that police authorities had very little in the way of democratic representation and the Home Office reigned supreme.

Over the past 20 years that has changed. A succession of measures, in which I was involved partly, has led to increasing local involvement in policing—first when I started the abolition of the role of the Home Secretary as the police authority for London; then with the gradual strengthening of the powers of the Mayor for London as the police authority; and much more recently with the establishment of police and crime commissioners. Taken together, those things mean that the accountability of those for our territorial police forces will increasingly be based on local considerations. That being so, there is a greater danger than ever before that national and international concerns could be marginalised. It is for that reason that I welcome the establishment of the National Crime Agency—the result of gradual development that began in 1992 and of many changes under Labour’s Administration. For those who have a weak stomach, as it were, I should say that it is inevitable that the Bill should give powers of tasking to the new director general of the National Crime Agency by which he or she can issue orders, effectively, to local police forces. Without that ultimate power, there will be an imbalance in the priorities that territorial forces can set.

I also happen to believe that there is a very strong case indeed for handing over counter-terrorist policing to the National Crime Agency, as the London police focus becomes more and more local. If that is to happen, however, it is essential that it is by way of primary legislation, not by way of super-affirmative orders. I care about the Minister’s reputation, so I tell him to stay away from super-affirmative orders. They can lead only to a vale of tears. Some Labour Members have gone down that vale and have been only too delighted to have been hooked out and extracted by right hon. and hon. Friends.

[Bob Stewart (Beckenham) (Con)]

I have been listening very carefully to what has been said. How would the right hon. Gentleman see the police and crime commissioners fitting in if the National Crime Agency were in charge of local police forces?

[Mr Straw]

My point is this: the establishment of the police and crime commissioners is a matter of party controversy, and we will see whether they are embedded or whether there is some change. In any event there has been an increasing focus on giving local people greater say over local policing, and I strongly support that, but it means that national and international priorities—the threats that lead to quite a lot of local crime—could be marginalised. That is why there is a powerful case for a National Crime Agency and the kind of powers of direction that are inherent there. As I say, we have to go a stage further and accept that there will be two levels of policing—a national police service and the local police services—and ultimately the national police service, the National Crime Agency, will have the power to direct the local police services to ensure that national priorities are met.

On the reform of the courts, I welcome the unification of the county courts, which makes complete sense. I particularly warmly welcome the establishment of a single family court. That arises from the review of family justice under David Norgrove, which I established with support from the then Opposition. I am really pleased that, thanks not least to Mr Norgrove’s great acuity and sensitivity about the way in which the system needs to reformed and further changed, it looks as though the review will have important and beneficial consequences.

I changed the law on self-defence back in 2008. I understand why the Justice Secretary was faced with a blank in his proposed speech to party conference and thought he needed to say something on this issue. I doubt very much whether it will make any difference at all, because the practice and the law have already changed satisfactorily, but I certainly will not oppose the measure and I do not think my right hon. Friends will either.

The next issue is the right of appeal on applications for visitor visas. I ask the Minister and his colleagues to look again at the arguments that have been advanced to them by Home Office officials. No one—I say this without any levity at all—has greater affection for Home Office officials than do I. I went to great lengths in my memoirs—available in all good bookshops—to defend and to celebrate officialdom, not least in the Home Office. I never sought to blame officials when it is Ministers who set policy and implement it. However, the truth is—I may give away a secret, but too bad—that it is inconvenient for there to be a right of appeal in visitor cases. There was a lot of resistance to it when I introduced the right of appeal in 1998, and I can disclose that throughout the rest of my ministerial career, about once every two years there was a proposal from other Ministers, once I had left the Home Office, to abolish the right of visitor appeal. I blocked it, whatever position I was in. That is why it survived.

[Keith Vaz]

Another secret missing from my right hon. Friend’s memoirs is the fact that when I was entry clearance Minister he was one of my biggest customers. The important point about that is that the element of discretion—the need to look again at the decision—is absolutely vital, whether it is a Minister saying that they will overturn the decision or whether it goes to appeal. With the reluctance of immigration Ministers to exercise discretion, it is vital that people get the chance to look again.

[Mr Straw]

My book is being reprinted, I am pleased to say, but when there is a revised edition I will add that. The truth is that—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. As successful as the right hon. Gentleman’s book is, I am sure that we do not need to get bogged down in his book sales. We look forward to the next volume.

[Mr Straw]

The truth is that my right hon. Friend had to make those ministerial decisions because visitor appeals had not been introduced at that stage. Ministers will end up with a lot more demands on their plate, among other things, if they take the route of abolishing visitor appeals.

[Fiona Mactaggart (Slough) (Lab)]

Does my right hon. Friend agree that this provision is more important than it was when he introduced it, because a number of our constituents will not be able to satisfy the current price of bringing a husband, for example, into the country, and it is therefore likely that there will be many fathers who can never even see their children in this country?

[Mr Straw]

I entirely accept what my hon. Friend says.

Like the Joint Committee on Human Rights, I have looked at the analysis put forward by the Home Office, and I am afraid that I am sceptical about the evidence, which collides with my experience and, I believe, that of my right hon. and hon. Friends and Government Members who have large immigration case loads. It is rare, in my experience, for constituents and their relatives abroad not to have produced the evidence first time round. Much more frequently, they produce the evidence and it is then overlooked. Time and again, my office and I face the situation where the evidence has been submitted and it has been overlooked by the entry clearance officer or has got lost. It may appear to the tribunal to be new evidence, because for sure it is new evidence to the entry clearance officer, but it is not correct to draw the conclusion that that evidence has never gone before immigration officers. Even if that is the case, the fact that a third of appeals are upheld shows that there is important merit in having such a right of appeal. To argue—I hope that the Minister does not do this—that it would be just as satisfactory to re-submit an application is, frankly, disingenuous in the extreme. I have seen constituents re-submit applications in respect of non-family cases, where there is no right of appeal, and all that happens is that the application is turned down again and they have wasted their money.

My final point relates to judicial appointments. I strongly support the proposed changes in respect of diversity. The apparently prosaic change to allow for the number of judges to be counted by full-time equivalents and not by full-time numbers will make a very important contribution to the employment of the part-time judges, typically female, at every level. Also very important are the tipping-point provisions to allow for the Judicial Appointments Commission to take into account somebody’s gender or colour if two candidates are of equal merit.

[Sir Edward Garnier]

Will the right hon. Gentleman give way?

[Mr Straw]

I am afraid that I am running out of time.

I depart from the Government on their proposals for very senior appointments—to the Supreme Court, for the Lord Chief Justice and for the heads of division. Initially the Bill included a proposal by the former Lord Chancellor by which the Lord Chancellor would sit on the appointments panel for those very senior appointments. That has been withdrawn from the Bill in place of consultation. The current arrangements, which include consultation, do not work. It is entirely legitimate for the Lord Chancellor to have a role—not the decisive role, but a role—in these very senior appointments, because what the Supreme Court is doing has very clear political consequences and what the Lord Chief Justice and heads of division are doing has very clear Executive and administrative consequences. The current Lord Chancellor may not wish to sit on the appointments panel—that is his choice—but it is important for the benefit of future holders of that office that the power should be available, and I ask the Minister to look at that again.

18:59

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw), a former Home Secretary who always brings a refreshing frankness to the proceedings. I do not agree with him on his last point. I think that the Government were right to move away from the idea of the Lord Chancellor sitting on the panel that makes the crucial appointments to the top of the judiciary. I do not think we would ever have been able to persuade anybody that that did not represent an excessive direct involvement of a politician in the process of choosing judges, notwithstanding the fact that the Lord Chancellor is involved at the end of the process.

The right hon. Member for Wythenshawe and Sale East (Paul Goggins) described the Bill as a typical Home Office—or, in this case, Home Office and Ministry of Justice—Christmas tree, but it does not contain quite as many unwanted gifts as previous such Christmas trees. Indeed, it contains many welcome things, and I want to concentrate on those that relate to the work of the Justice Committee.

I should say in passing that I very much welcome the Government’s acceptance of clause 38, which relates to the Public Order Act 1986. I noted Labour Front Benchers’ dithering on this matter, if it is indeed dithering; perhaps they will retain their past position of wanting to keep the law as it is—I do not know. From a free speech and civil liberties point of view, bearing in mind the clear statement by the Director of Public Prosecutions about what can be done without having the word “insulting” in the law, the Government have sensibly accepted an overwhelming decision in the other place.

[Mr Leigh]

Of course, it was in the Lib Dem manifesto, and when we can agree on things, we should agree—that is what marriage is about.

[Sir Alan Beith]

It is what coalition is about.

I welcome the drug-driving provisions, which I am very glad to see in the Bill, but I will turn first to family justice issues and the single family court, which I strongly welcome. There is still a problem about openness in the family courts, and the lack of it helps to feed very strong views among fathers about how private law cases are decided and among families about how public law cases are decided. That creates, or strengthens, a sense that wrongful decisions may be taken, and people do not understand the reasons for decisions. We have had some advances through anonymised judgments being brought forward, but it remains a problem.

In 2005 and 2006, my predecessor Committee argued for openness provisions of the kind that were eventually legislated for, but when they were on the statute book and we took further evidence for our 2011 report, we did not find a single witness who was happy with them. In the face of that, we were right to say that the Government cannot proceed on this basis, and they are right not to do so. However, we cannot simply abandon the issue. We have to look at more ways of spreading understanding and recognition of what goes on in the family courts and having them exposed to the pressure that public justice—open justice—applies everywhere else. There are compelling reasons why that cannot be done in the same way in the family courts, but we have to take account of the fact that the absence of transparency presents a problem.

On the delegation of functions to legal advisers, the Committee felt strongly that there must be clear supervision by a district judge of any judicial function that is being carried out by a legal adviser.

Fine collection is one area where the Committee said that improvement was still needed. We recognise that some improvement has taken place, but there certainly needs to be more. We welcome the chasing of old debts and recognise that there is potential benefit from the private sector being drawn into this activity. However, there is not merely a loss of public revenue when fine collection is not achieved; there is a serious undermining of the justice system when people see that fines have not been paid and that those involved have got away with it.

The self-defence provisions are probably not legally necessary, but they may have some beneficial impact as regards how the police view cases of this kind. Someone who has been attacked in a terrifying way—whose house has been frighteningly invaded—deserves to be treated as a victim of a crime and have the respect accorded to such a victim even while there is some consideration as to whether there was any grossly disproportionate response on their part. The underlying purpose of the change in the law must be to get that recognition. I do not think that it will actually change the way in which any cases are decided; if I thought that it would, I would worry that it had gone too far.

My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) referred to deferred prosecution agreements, on which he has done a great deal of work. My Committee took evidence from the Director of Public Prosecutions on such agreements. He saw them as an additional tool for prosecutors, but not in any way a replacement for bringing cases to court in many circumstances. However, there are clearly cases in which it would be to everyone’s benefit to take action that did not involve a long drawn-out court case, but that none the less provided restitution for the victims of fraud and perhaps enabled the continuance of a business under new management. The alternative, as my right hon. and learned Friend vividly described in referring to the Arthur Andersen case, can involve a massive loss of jobs and many other adverse consequences that are in no one’s interest.

I want to talk about the provision for non-custodial sentences, and the requirement for a clear element of punishment in such sentences. I do not disagree with that principle, but we should remember that many offenders regard community sentences as more arduous than prison sentences. On more than one occasion, ex-offenders appearing before the Justice Committee have told us that they have committed further offences because they were sick of the requirements of their community sentence and thought that a short spell in prison would be much easier. That might seem counter-intuitive—it might not be what most of us would imagine—but for plenty of criminals, a long and arduous community sentence that places requirements on them, whether it appears punitive or not, is more exacting. They would rather be sitting in prison getting three meals a day and not having a great deal to do.

This provision must not result in our administering a measure that is not the most effective way of changing someone’s life and preventing them from reoffending. We are trying to ensure that there are no more victims of a particular person’s crimes, and to turn around the way in which they behave. We should measure what we are doing in accordance with that aim. More often than not, the challenging requirements that the provision will place on the person to face up to the consequences of what they have done—through restorative justice, for example—to face up to a victim when that is possible, and to make effective reparation to society will be more punitive in practice than a prison sentence. We need to have an understanding of that process.

That leads me to the subject of restorative justice, which has great potential; I am glad that there is provision for it in the Bill. We all recognise that it cannot be forced upon victims, but the level of satisfaction among victims that we have seen in evidence to the Committee has been very encouraging indeed. There is also a growing public view that it makes sense for criminals to be faced with the consequences of their crimes and with the harm that they have done to others, and required to change their lives as a result.

The right hon. Member for Wythenshawe and Sale East referred to a provision that was added to the Bill in the Lords, relating to non-custodial sentences for female offenders. The Justice Committee is embarking on an inquiry into women offenders, and we have already expressed the view on more than one occasion that more needs to be done to ensure that courts have at their disposal appropriate and effective means of dealing with women offenders. Indeed, our report on the probation service, which we produced in July 2011, stated:

“The probation service’s approach—where resources tend to be directed towards dealing with offenders who present the highest degree of risk—can fail adequately to support women offenders. The approach recommended by Baroness Corston for the provision of holistic services that address all women’s needs is still a long way from being realised.”

The Government now need to include in the Bill a reminder that more needs to be done in that respect.

This Home Office and Justice Bill provides an us with an opportunity to welcome an unusually large number of provisions. There are others that will be pored over in detail in Committee. The effective implementation of the provisions on fines and on non-custodial facilities for women offenders, for example, will add to our ability to do what we are supposed to be doing, which is using the criminal justice system to stop people becoming the victims of crime in the first place.

19:14

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

As with most Bills, there are aspects of this one that are to be commended, and others that we can argue about. The Bill contains several measures for which the justification is utterly unclear. In introducing the changes to community orders and to the law of self-defence, the Government seem to be ignoring the importance of judicial discretion, and the changes to immigration law seem very harsh. In my contribution today, I will set out the reasons for my opposition to some provisions in the Bill. I would also like to say, however, that the proposals on single family courts, on drug-driving and on judicial appointments are all excellent. The devil will be in the detail, of course, but so far so good in those areas.

Clause 28 provides for the relaxation of the ban on televising court proceedings by granting the Secretary of State the power to revoke the current rules by order, with the agreement of the Lord Chief Justice. Under the current law, section 41 of the Criminal Justice Act 1925 bans the taking of photographs, portraits and recordings of judges, jurors and witnesses in all civil and criminal proceedings. By removing that ban, I hope that clause 28 will broaden public engagement with the administration of justice, as well as increasing understanding of the judicial process.

Caution must be exercised, however, to ensure that proper parliamentary scrutiny is given to the detail of these plans. It is unclear to me why clause 39 should provide for any secondary legislation setting out the specific circumstances in which the Government intended to allow filming to be subject to the negative resolution procedure, hence greatly limiting the scope for debate on the topic in this place. Many groups, including Liberty, have expressed concern about the possible repercussions that could emanate from allowing for the filming of civil and criminal proceedings in their entirety. That could well lead to additional anxiety for witnesses—and in certain circumstances to some witnesses being less inclined to appear in court—as well as to the alteration of testimony.

The impetus behind the provision is, of course, welcome, but for the reasons that I have set out, the details of the Government’s plans in this area should be set out in primary legislation. If, however, the televising were limited to the judgment, as is the case in Scottish courts, that would add useful transparency and provide assistance to law commentators, to students and to practitioners.

By contrast, the proposed changes to the law on self-defence in clause 30 seem to have no justification. I do not like falling out with the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith)—the esteemed Chair of the Justice Committee, of which I am a member—but I take a different view from him on this. He will know that, under the common law, defendants are able to use reasonable force against an intruder. That defence was put on to the statute book by section 76 of the Criminal Justice and Immigration Act 2008.

The law states that a defendant may use against an intruder an amount of force that he or she believes to be reasonable and proportionate at the time, even if a court subsequently considers that that belief was misplaced. The law as it stands evidently provides sufficient defence for homeowners. Indeed, data from the Crown Prosecution Service show that, between 1990 and 2005, the service prosecuted only 11 cases in which a defendant had been charged under the current law. However, if clause 30 is allowed to go through unamended, it will allow for a defendant to use an amount of force that he or she acknowledges to be disproportionate at the time, provided that the force used is not “grossly disproportionate”.

I have prosecuted and defended many cases involving self-defence, as have other Members, and the existing law has been regarded as perfectly adequate hitherto. If ever I saw a change to the law that would open the door to vigilantism, this is it. In my surgery on Friday last, a farmer came to see me. He was a responsible, middle-aged man, and he told me that three individuals had tried to break into one of his barns to steal a quad bike. There is too much of that kind of thing going on in rural Wales at the moment—but I digress.

The farmer said, “I have a shotgun. What would have happened if I’d aimed and shot above their heads?” I had to put him right on that and he said, “But isn’t there a change in the law?” That is where we are: people think that we are upping the ante. If the purport of the clause is to raise the bar for the police and the CPS in the first place—Justice Ministers have told me that that is the case—I suppose that there is some logic to it, but it could well be dangerous, as my example shows. Ministers do not think that it will change anything in the court and hope that it will lead to the bar being raised in the first place, but as I have said, there is a grave danger that people will take the law into their own hands and believe that it is open season on individuals who roam on their property. The Law Society says that it will end up with greater litigation and that the present law is workable and acceptable.

Clause 31 would put into effect the provisions of schedule 15, which provide for a number of changes to courts’ means of dealing non-custodially with offenders. Part 2 of the schedule would allow courts to defer sentencing so that the offender and victim can partake in restorative justice. This is most welcome. All we need to do, as the right hon. Member for Wythenshawe and Sale East (Paul Goggins) has said, is look at the Northern Ireland model and make sure that the resources are there. It is an excellent step forward and I am pleased with it.

Recent polling conducted by Make Justice Work suggests that 70% of victims believe that they should have the opportunity to communicate with the offender so as to show them the impact of their actions. I think that that is probably right. However, the findings of a poll conducted by the British Crime Survey showed that 69% of victims who were offered a meeting with their perpetrator said no to the opportunity. The onus is now on us as individual politicians and the Ministry of Justice to increase public confidence in any proposed scheme.

The changes introduced in part 7 of schedule 15 are likewise welcomed. If passed, part 7 would ensure that all contracts made between the Secretary of State and probation trusts would require the trusts to make specific provision for female offenders, thus taking into account the particular needs of this demographic group. I pay due regard and tribute to Baroness Corston for the work she has done. The provisions in part 7 were included as a result of a successful non-Government amendment on Third Reading in the other place. I hope that the Government will accept these vital measures in this place.

Other changes proposed by schedule 15 are less welcome. Part 1 would amend section 177 of the Criminal Justice Act 2003 to guarantee that courts imposing community orders must include a mandatory punitive element. This could mean electronic tagging, exclusion orders and so on. I am at a loss to see why the Government are going further down the road of electronic tagging. Actually, I find it baffling, because the Government’s own impact assessment, published in March 2012, acknowledged that the measures could lead to an increase in reoffending as a result of rehabilitative requirements being sacrificed to make way for punitive requirements.

Part 4 of schedule 15 relates to electronic monitoring, on which the Government’s own impact assessment, dated 4 January 2012, suggests that

“the UK evidence points towards a more neutral impact on re-offending”.

It does not work. The current spending on electronic monitoring is £120 million and, as a result of this Bill, it will rise to £360 million for something that does not work—and this from a Government who seek “more for less”. Conversely, the impact assessment observes:

“Research on supervision suggests that the supervisory relationship between the offender and the case manager plays an important role in securing compliance and promoting desistance.”

Why, therefore, are the Government now seeking to privatise that so that trained professionals will not deal face to face with offenders, which is the proper way of doing it? The Government have also proposed major changes to the probation service and I am concerned about the effects they will have.

Clause 20 would revoke a restriction listed in the Senior Courts Act 1981, thus providing for the transfer of immigration judicial review applications from the High Court to the upper tribunal.

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

The right hon. Gentleman will know that the Scottish Parliament passed a legislative consent motion allowing this House to legislate on its behalf, but clauses 20 and 21 were introduced at a later stage without any consultation with Scottish Ministers. This has caused great upset in the legal fraternity in Scotland, particularly those who are acting and operating in our judicial system and with particular regard to referrals to the Court of Session. Does he agree that the Government should have consulted Scottish Ministers before including clauses 20 and 21 in the Bill?

[Mr Llwyd]

Absolutely. We always thought that the devolved Administrations were part of the respect agenda and that the Government would consult them. I find it astonishing that that has not happened with regard to such an important matter.

On clause 20, the Immigration Law Practitioners’ Association and Liberty argue that no case has been made for the change, which will impact on almost all immigration and asylum applications. Crucially, the upper tribunal stands charged with not having demonstrated its ability to deal with the UK Border Agency’s conduct in the same way as the High Court has done. ILPA cites examples of UKBA failing to respond quickly to the upper tribunal’s orders and its failure to adequately plead its case as problems that plague many cases.

As a result, the Joint Committee on Human Rights has recommended that the Government insert further provisions into the Bill to make sure that immigration and nationality cases in which human rights such as life, liberty and freedom from torture are at stake continue to be decided by the High Court. I hope that the Government will reconsider that point.

Clause 34 would remove the right of appeal against the refusal of a visa to visit a family member, except on grounds of human rights or race discrimination. I will not retread the ground very well and adequately covered by the right hon. Member for Blackburn (Mr Straw) and others. I fully agree with them and hope that the Government will reconsider the provision, because it could be harsh in the extreme. I also agree with the Law Society and the JCHR, which argue that the measure cannot be passed in the light of the poor quality of so many decisions made by UKBA, as evidenced by the high number of successful appeals against refusals.

There it is—as always, there are some very good things, but there are some pretty poor things as well, and one hopes that many of them will be improved and some deleted in Committee.

19:27

[Mr Shailesh Vara (North West Cambridgeshire) (Con)]

It is a pleasure, as always, to follow the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), although, as will become apparent, I disagree with some of the points he raised. I also declare an interest as a non-practising solicitor.

I wish to direct most of my comments to clause 30, which deals with self-defence by householders in their own homes and by business people whose businesses are part of the accommodation in which they also live—principally, shopkeepers.

As far as I am concerned, this is unfinished business. As the Home Secretary said in her speech, I and a couple of other Government colleagues have in the past tried to change the law to make sure that what is proposed by clause 30 is enacted. I promoted a private Member’s Bill in December 2006, as others had done before me. It had cross-party support, including from the present Attorney-General and my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor-General, as well as from distinguished Members on the Labour Benches, particularly the right hon. Member for Birkenhead (Mr Field) and—dare I say it?—a very distinguished person in yourself, Mr Deputy Speaker. I therefore congratulate the Home Secretary on introducing this measure.

At present, the test for a householder is to use reasonable force in self-defence, which, I contend, is difficult to define and not easy to enforce. A higher test is required that allows the use of force as long as it is not grossly disproportionate. That will benefit not only the general public but the police and the Crown Prosecution Service, because it will provide them with much clearer guidelines within which to operate.

The example given by the right hon. Member for Dwyfor Meirionnydd would not exempt a person from being prosecuted. We are talking about individuals acting in the heat of the moment. The test is reasonableness—not with the benefit of hindsight, but as it appears at the time.

[Mr Llwyd]

The example I gave was of three people trying to break into a barn adjacent to a farmer’s house to steal from him. That is the heat of the moment, surely.

[Mr Vara]

To lie in wait with a shotgun is not to act in the heat of the moment; it is premeditated. That is not what clause 30 allows.

The only people whom clause 30 will not benefit are the criminals who break the law in the first place.

In considering the clause, it is important to reflect on some statistics. The crime survey for England and Wales for 2010-11 estimates that there were 745,000 burglaries during that period. In approximately 205,000 of those instances, the victims were at home, were aware that the offence was being committed and saw the offender. In approximately 75,000 cases, force or violence was used against the victim.

Those who support the present test often say that it is for a court—a judge and jury—to decide on the facts. However, it can take up to a year, or possibly longer, for a case to reach the courts. During that time, the individual has to put up with the stress and anxiety, especially those who are subsequently found innocent. It cannot be right that people who are going to be found innocent, along with their families, have to endure that anguish. It is therefore important that the law is clarified for people who act honestly and instinctively in self-defence.

The public should know that the law is on their side. Sometimes, it is right and proper that we speak up for the victims of crime and the general public who are on the receiving end of the violence, the figures for which I have just given. Let there be no doubt that we are talking about victims of crime—law-abiding householders, shopkeepers and military personnel living in barracks, because the clause covers the military as well.

It is not surprising that leading and prominent members of the police force support raising the test. The former Metropolitan Police Commissioner, Lord Blair, said on his first day in office, when asked about this issue:

“I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen, whereas something as stark as gross disproportionality did seem to me to be clearer.”

He was right. At 4 o’clock in the morning, a householder who is confronted by an intruder is frightened—indeed, he is likely to be petrified. His response will be instant and he will have no regard to reasonableness or otherwise.

Lord Blair’s predecessor, Lord Stevens of Kirkwhelpington, did not mince his words either, saying that

“householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence”.

The present commissioner, Sir Bernard Hogan-Howe, told the BBC that he agreed that homeowners need better protection than is available at present:

“I think, probably, there’s an argument at the moment for making sure that that bar gets higher, and that the homeowner has better protection, and the burglar is put more on notice that they’re at risk if they choose to burgle someone’s home while they’re in it”.

It is important to note that the higher bar is reflected in the guidance for police when arresting people. The test for individuals who claim to have been acting in self-defence was updated only two months ago:

“The changes are driven by the coalition commitment to protect householders and others from unnecessary arrest when they use force in the belief that they are acting in self-defence. The amended Code…sets out that, in order to establish grounds to suspect a person of committing an offence, officers should consider facts and information which tend to indicate the person’s innocence as well as their guilt.”

The Crown Prosecution Service guidance also uses a higher level:

“You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self defence.”

It goes on to say:

“If you have acted in reasonable self-defence, as described above, and the intruder dies you will still have acted lawfully.”

Given that the guidance for the people who implement the law—the police and the Crown Prosecution Service—refers to a higher test than that laid down in the present law, it makes sense for us to clarify the law and make it easier to implement, rather than for the implementers to rely on guidance.

There is considerable public demand for this measure. When I introduced my private Member’s Bill in 2006, one of my local newspapers, the Cambridge Evening News, conducted a survey that found that more than 90% of the people who responded were in favour of raising the bar of the test. An ICM poll conducted by The Sunday Telegraph in December 2009 found that 79% of those who took part favoured changing the test from reasonable force to grossly disproportionate force.

A change in the law is not only necessary; it will send out a powerful message. It will tell law-abiding citizens that the law is on their side and not on the side of criminals. It will also show that an Englishman’s home is still his castle.

19:38

[Keith Vaz (Leicester East) (Lab)]

It is a pleasure to follow the hon. Member for North West Cambridgeshire (Mr Vara). He has obviously campaigned hard on that issue and I commend him for his efforts. I am glad that the measure will be contained in this legislation.

Earlier today, the Home Affairs Committee held a conference to launch our new inquiry into leadership and standards in the police. I am pleased to see three members of the Committee here this evening: my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Cambridge (Dr Huppert) and for Rochester and Strood (Mark Reckless). We listened carefully to some of the leaders of our police service, including Hugh Orde, Bernard Hogan-Howe and the new chief executive of the college of policing, as well as leaders from abroad, such as the commissioner who heads the Royal Canadian mounted police and the former president of Interpol. It is clear that in order to get effective leadership, there must be effective structures. I am therefore glad that, with the creation of the National Crime Agency, we at last have a body for the head of the NCA, who was appointed 15 months ago.

At that conference, it was interesting to hear the acceptance from all sides of the police service of the need for the Government, the Opposition and those in the police service to sit together and talk about the future of policing. With the Bill, we have an opportunity to streamline a number of the structures that have operated in policing for a number of years. The Labour Government can be praised for the resources that they gave the police, but we would be the first to admit that we did not really spend the necessary time examining the structures and ensuring they were fit for purpose.

What the Government have proposed is a revolution in policing—the abolition of SOCA and the National Policing Improvement Agency, the creation of the College of Policing and police and crime commissioners, and the abolition of police authorities. When on taking office the Home Secretary announced the changes, she talked about uncluttering the landscape. We will probably have more organisations rather than fewer at the end of the process, but I would be the first to accept them if they were fit for purpose, acted upon Parliament wanted and did the job effectively.

My first concern about the new landscape is that it is not complete. We thought that by now we would have a Constable—perhaps “Dedham Vale”—but instead we have the tail-end of a “Guernica”. The good intentions are there, but it is not complete. I thought that after two years, we would have the end of the landscape and the jigsaw would have been completed, but it has not. I urge Ministers to come rapidly to a conclusion about how the landscape will look in the end. The Home Affairs Committee, including its members who are in their places, has scrutinised and monitored what the Government have been doing, but we cannot decide on the structures. That has to be up to the Government. All that the House and the Committee can do is scrutinise and monitor what the Government are doing and give our recommendations on whether the system will work.

We need a conclusion on whether responsibility for counter-terrorism will remain with the Met or form part of the National Crime Agency. Why? Because we were promised a review of that at the end of the Olympics. The Home Secretary specifically said that she would not make a decision until the Olympics were over. I urge the Government to make progress, because it is not in the Met’s interests, and certainly not in the interests of Keith Bristow and his new colleagues at the NCA, that they should delay.

Like the former Home Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), I would probably be minded to move responsibility for counter-terrorism into the NCA. It would fit well there, as the NCA will be a national organisation dealing with national and international issues. However, I know that there is resistance to that from the Met. I have discussed it with a number of officers, who feel strongly that responsibility should stay with the Met, because it has within it the expertise needed to deal with the matter.

It is also important that we know the name of the new chair of the College of Policing. Perhaps the Minister for Policing and Criminal Justice will tell us that. It has a chief executive, and we heard from him today. He has ambitious plans for what he hopes will eventually be a royal college of policing. Professionalism is vital to the future of our police service, but it is also important that the Government get on and appoint the chair. I know that someone was recently nominated, but that person has not been appointed, for a variety of reasons. If there is a shortlist of additional candidates, I urge the Minister to interview them, as I think he will be doing this week, and then let the Home Affairs Committee have the name of whoever is going to be in charge of the organisation, which is vital for the future of this country’s police service.

It is also important that we deal with the issue of appeals. I do not know whether the Minister will remember this, but when he was Minister for Immigration, he promised in a debate in the House a meeting with myself and colleagues who had an interest in immigration. Actually, I think I put it to the Home Secretary that she should meet us, but she passed it on to him. He, of course, has now left the post, and I hope he will pass the message on to the current Minister for Immigration.

Those of us who deal with a lot of immigration cases want the issue of appeals dealt with. That is not just Opposition Members—I see the hon. Member for Croydon Central (Gavin Barwell) in his place, and I reckon that he has many immigration cases at his surgery on a Friday evening. The last thing he wants is for us to be in limbo, having to ask people to apply again because there is no right of appeal for family visitors.

I put to Ministers a simple solution. I know that things have to change. I do not accept that there is abuse in the system, but it is a lengthy system and I know that they want to save money. I and others have suggested in the past that we have an administrative review of the decisions made by entry clearance officers. New evidence necessary to ensure that a case can be dealt with satisfactorily could go to somebody in a hub in London—it is quite possible for cases to be reviewed in London. I say to Ministers that the change will affect the settled British community, the diasporas that the Prime Minister and other Ministers feel strongly about bringing on-side. Unless we do something about the problem, British citizens trying to get relatives over for weddings and other family events will suffer.

[Dr Huppert]

It is always a pleasure to speak to the right hon. Gentleman about these issues. There is a problem when more information is required in a case, and I understand the Government’s advice that people should reapply. Would not an alternative approach be for entry clearance officers to be able to specify what extra information they would like and make a decision once they have received it? I have seen a number of cases in which they asked to see specific documents part-way through the process.

[Keith Vaz]

I agree, and my biggest regret from when I was the Minister responsible for entry clearance 10 years ago is that I did not introduce that approach. I left it to the system, and I was wrong to do so. If we had a system that allowed new information to be accepted, we would be able to save the taxpayer a huge amount of money and save those who are seeking to bring people into this country a lot of anguish.

[Mark Reckless (Rochester and Strood) (Con)]

Does the right hon. Gentleman agree that if the motivation for the change is financial, another option may be to increase the fee payable for appeals? I understand that would put some people off and might significantly reduce the number of appeals, but the possibility of entry clearance officers’ decisions being reviewed by a judge might help to ensure that decisions are made better than if the right of appeal is removed.

[Keith Vaz]

That is an option. I would not be enthusiastic about putting up fees, but people do not mind paying fees if they get results and cases are dealt with quickly. If that can be guaranteed, it is certainly an option. The hon. Gentleman’s intervention and that of the hon. Member for Cambridge (Dr Huppert) have shown us that it is quite possible to put forward alternative measures to abolishing the right of appeal. I hope that the Government will consider them.

I wish to say a couple of things about the parts of the Bill that I welcome. One is the establishment of the forum bar, which the Home Affairs Committee recommended when we examined extradition. Following the whole Gary McKinnon saga and the marvellous work of the hon. Member for Enfield, Southgate (Mr Burrowes), who campaigned so passionately for his constituent, we put forward the idea of the forum bar, and now it will legislated for. We are delighted about that.

I am less delighted by the Home Secretary’s wish to give all the rest of her extradition powers to High Court judges. If we have Ministers, we should allow them to make decisions. I am not sure why people wait so long for ministerial office, then get there and want to hand all their powers over to judges. I actually think it is a good idea that Members of Parliament and others should be able to make representations to Ministers if there are exceptional cases. That will not be the norm—Gary McKinnon and Richard O’Dwyer’s cases were not the norm. They were exceptional cases that got to the Home Secretary’s attention only because of the work of people such as Janis Sharp, Gary McKinnon’s mother; the hon. Member for Enfield, Southgate; and Richard O’Dwyer and his mother Julia. They were able to bring those cases to Parliament’s attention, and we should ensure that Ministers keep those powers rather than give them away.

I have been watching how the hon. Member for Croydon Central has pursued the campaign concerning drug offences when people are driving. Given the circumstances of his constituent, it must be a great relief to him and his faith in parliamentary democracy that a case he has raised so frequently in meetings with Ministers over the past year or so has ended in the fruition of a clause in a Bill that will change the law. What satisfaction it must give him as a constituency MP to know that he, along with other Members, has been a part of changing the law. I welcome what the Government are doing, and they are quite right to ensure that that change takes place.

I was never a great fan of the Judicial Appointments Commission introduced by the previous Government. Perhaps because both Lord Chancellors under whom I served—the noble Lord Irvine and the noble Lord Falconer—were, in my view, exceptional people, I thought that they could make better decisions about the diversity of the judiciary than a quango. I was right: they would have made better decisions and the judiciary would today have been quite different. I welcome what the Government are doing; it is a message to those who make such decisions that the judiciary needs to look not as Parliament did when I was first elected but as how it is today—Parliament looks like the country and so must the judiciary. Obviously, people must pass the merit test. Nobody wants jobs given away because someone happens to like the person sitting in front of them, or because they are a particular gender or race. Jobs are given to people who are qualified and able to do them effectively.

I will end with a comment made earlier today by Lord Wasserman, the Government adviser on some of the policing reforms. As the House knows, the Home Affairs Committee has been trying to get Lord Wasserman to appear before it, and he came before the Committee today as part of our international conference. He spoke most eloquently and I was quite taken by his comments. He suggested that the Government look at how police and crime commissioners have operated, and that the Committee hold an inquiry into that at the end of the year—obviously, the Committee will decide whether it wants to do that. The Minister has escaped; he has got political asylum from immigration and gone to policing. He survived the little problem of a few years ago, when I understand from The Sunday Times he ended up in the Cherwell. I did not see the Attorney-General in the Chamber making up with him; he was here earlier, but he is not present at the moment.

The Minister has one of the most exciting jobs in government: the chance to finish off the new landscape of policing. I know my right hon. Friend the Member for Delyn (Mr Hanson) enjoyed being policing Minister, but the way to really enjoy the job is to ensure the jigsaw is completed and that we get a police service that fits the structure. We have the best police service in the world. Let us ensure that the organisations that are there to serve it really work.

19:52

[Gavin Barwell (Croydon Central) (Con)]

It is always a pleasure to follow the Chair of the Home Affairs Committee, and doubly so since he was so kind about me in his speech. He speaks with great authority on all these issues, and although he tempts me towards the issue of appeals in relation to family immigration, I hope he will understand if on this occasion I rise to speak specifically to clause 37, which deals with drug-driving.

On 26 June 2010 my constituent, Lillian Groves, was killed outside her house. She was just 14 years old. The driver of the vehicle that knocked her down was driving a car that was not licensed in his name. He had no insurance to drive that vehicle, was driving at 43 miles an hour in a 30-mile-an-hour zone, and a half-smoked joint of cannabis was found on the car’s dashboard. When the police found him he was not at the scene of the accident as he had gone some distance down the road.

I hope the House will not mind if I pause for a second to reflect on what Lillian might have done in the rest of her life, the people whose lives she would have touched, the children she might have had, and the contribution she might have made to our local town. It is not just the loss of her life, but the impact her death has had on her friends and, most particularly, her family. Lillian was taken to hospital and pronounced dead some hours later. Sadly, the blood of the vehicle’s driver was not tested immediately, and only after Lillian died did the police conduct a test. Cannabis was found in his blood. The family have never been told the level that was found although the Crown Prosecution Service told them that it was not sufficient to warrant a charge of causing death by careless driving while under the influence of drugs.

The driver was sentenced to just eight months in jail. He served just four months and was released. He lives locally to the family, so for the rest of their lives they will be faced with the knowledge that every time they go to the local shops there is a danger that they will bump into this individual who has never spoken to them, apologised or shown any remorse at all for what he has done.

To my mind, those of my constituents, and I hope all Members of the House, that family did not receive justice in any sense of the word, and I want to pay tribute to Gary and Natasha—Lillian’s parents—and Michaela, her aunt. A number of Members, including the Chair of the Home Affairs Committee and the Home Secretary, have been kind to give me credit for the campaign I have run, but I do not feel that I deserve that at all as I am just doing my job. Those who deserve credit in this instance are Lillian’s family. They took a terrible situation that no parent would ever want to endure, and rather than be consumed by anger—as I fear many of us would be—they wanted to turn it into something positive and see a change in the way that we as a society deal with this issue so that other families do not have to experience their anguish.

Lillian’s family found a powerful and useful friend in our local paper, The Croydon Advertiser, and in particular an excellent young reporter called Gareth Davies who worked with them to put together a campaign for what they have called “Lillian’s law”. They came to see me at my surgery to ask for my support, and the package they were looking for contained four items. First, they wanted a change in the law itself. As the Home Secretary mentioned in her speech, although it is currently an offence under section 4 of the Road Traffic Act 1988 to drive while impaired by drugs, it is extremely difficult to secure convictions under that legislation because it is difficult for the prosecution to prove impairment. There is no equivalent to the law on drink-driving whereby if someone has more than a certain level of a drug in their blood, that is held to be evidence of impairment. The law is not weighted in the same way. The first thing, therefore, was to change the law, which is what clause 37 does.

I hope the House will not mind if I mention a couple of other things that the family are also looking to see happen. The second point is to have a device, equivalent to a breathalyser, initially for use in police stations but in the longer term for use at the roadside. At the moment, the police conduct a field impairment test, the suspect can be taken to the police station and a doctor must be called to conduct a blood test. That is expensive and time consuming and there is therefore a disincentive to conduct such tests. It is important to get devices in place that allow tests to be carried out that are equivalent to those for drink-driving. I am pleased that the Government have recently given type approval for devices for use at police stations, and I understand—perhaps the Minister will confirm this—that the intention is to approve a device for use at the roadside by 2014.

The third issue was to look at sentencing and to ensure appropriate punishment for those convicted of such offences. The Bill would provide a level of sentence equivalent to that for drink-driving. The fourth thing, which can only happen once the three other pieces of the jigsaw are in place, is to look at an enforcement campaign similar to that of the 1980s on drink-driving. There was a time when lots of people drove under the influence of drink—to a degree, it was the cultural norm. It took that enforcement campaign in the 1980s to change attitudes, and I think we now need a similar campaign about driving under the influence of some drugs that, sadly, are all too prevalent in society today.

When the family came to see me at my surgery, I was faced with the challenge of what to do and how to help them. As usual, the House of Commons Library was a great place to start, and I began researching the law and previous efforts to change it—and to be fair to the last Government, they looked at this issue. It was a difficult and complicated matter, however, as several different Departments were involved: the Home Office, in relation to the police’s responsibilities; the Ministry of Justice, in relation to the criminal offence; and the Department for Transport.

I decided to raise the profile of the issue and ask about it in Prime Minister’s questions. I want to put on the record my thanks to the Prime Minister, because he agreed to meet the family and invited them to 10 Downing street to see him. I guess they found in him one of the few Members of the House who sadly could understand exactly what they had been through in losing a child. The staff at No. 10 have worked closely with all three Departments to get the change in the law before us today through as rapidly as possible.

I want to ask a couple of questions about the detail. The hon. Member for Cambridge (Dr Huppert) alluded to this matter in a question that he asked the Home Secretary earlier about what the limits for specified drugs might be. Proposed new section 5A(9) in clause 37(1) provides that specified limits could be zero. Paragraph 562 of the explanatory notes, which are always a great source of guidance, contains the wonderful sentence:

“New section 5A(9) provides that specified limits could be zero, though this does not mean that limits would in fact be set at zero.”

One can make of that what one will.

Lillian’s family feel strongly that the level for illegal drugs should be set at zero. As a matter of principle, they feel that people should not be taking these substances and therefore should not be driving under their influence. There is the strong counter-argument, however, that we should be led by science, as the hon. Member for Cambridge tried to point out, that we should try to discover what level of an active substance in the blood stream leads to the same level of impairment as the blood alcohol limit and that we should set the limits that way. Clearly, as the Bill tries to do, we also have to consider prescribed medications that have the same active substances as some illegal drugs.

[Mr Burrowes]

I commend my hon. Friend for his leadership in driving through this important change. I want to ask about the sentencing impact. Assuming its safe passage, this proposal will have as its outcome a sentencing maximum of 12 months. If someone is impaired by being over the limit, whether in relation to drugs or alcohol, plainly that is inherently careless, but only if they were charged with causing death by careless driving while under the influence would their case get to the High Court for a much heavier sentence, which is what many of these people deserve.

[Gavin Barwell]

As usual, my hon. Friend makes a good point, and I will explore those issues once I have dealt with the limits.

A decision needs to be made about whether the levels should be based as far as possible on the scientific evidence of similar levels of impairment to that caused by alcohol or whether there is a case, as the family believe, for zero limits for some of the most serious substances. As I understand it, the Government have set up the Wolff panel to consider the detail. They themselves are finding this a highly complex and difficult area and are taking a bit more time than originally envisaged to do this work, but I would be grateful for any guidance that the Minister could give in his winding-up speech about the timing of the panel’s report.

[Dr Huppert]

It is a fascinating balance. I have seen comments from the Wolff panel suggesting that alcohol is far and away the most dangerous substance that people can take, so although I support the aim in the Bill of reducing impairment, perhaps more work still needs to be done on drink-driving as well.

[Gavin Barwell]

The hon. Gentleman makes a powerful point.

I am conscious of the time and of the fact that other Members wish to speak, so I will end by addressing the point about sentencing raised by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). The explanatory notes make an interesting point. They state that the sentencing has been set at the same level as for driving under the influence of alcohol. Paragraph 560 of the notes states that these are

“the penalties set out in Schedule 2 to the Road Traffic Offenders Act 1988 as increased, for England and Wales, by certain provisions of the Criminal Justice Act 2003 which are not yet in force”.

Will Ministers give some guidance on what the provisions of this Act passed nine years ago are and why neither the previous Government nor the current one have yet brought them into force?

Paragraph 567 also makes an important point that I think answers the point made by my hon. Friend the Member for Enfield, Southgate. It reads:

“Paragraph 2 amends section 3A of the 1988 Act so that if the person had a controlled drug in the blood or urine in excess of the specified limit for that drug, the person could be charged with the more heavily penalised offence in that section of causing death by careless driving”.

I believe that that means—I would be grateful if Ministers could confirm this—that the limits will apply to both offences and that in a case such as Lillian’s, if the driver’s cannabis level is above the limit subsequently set, the more significant charge could be brought against the individual.

In conclusion, I pay tribute to Lillian’s family for their work in advancing this cause. The House will know that Lillian is far from the only individual whose life has sadly been cut short by a drug-driver. No doubt, sadly, other Members will have examples from their own constituencies, but for me it has been a great privilege to speak up on behalf of this wonderful family, who want to ensure that other people do not go through the agony that they have experienced. I thank my right hon. Friend the Prime Minister and all the Ministers responsible for bringing the Bill before the House.

20:06

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

It is a great pleasure to follow the hon. Member for Croydon Central (Gavin Barwell) and I congratulate him on his work in bringing his provision to this point. Before I entered the House, I served as a lay magistrate for 16 years and in cases of people driving under the influence of drugs, was always struck by the complete uncertainty about how we applied the law, compared with the dead certainty in relation to people driving under the influence of alcohol. I therefore welcome the clarity that this provision starts to bring.

I would like to talk about several aspects of the Bill. They are by no means the only elements that have come up this evening, but I want to focus on the issues relating to diversity and sentencing. I endorse the comments of my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) in welcoming the amendment inserted in their lordship’s House specifically to introduce a focus on the position of women within the criminal justice system. That provision did not have Government Front-Bench support in the House of Lords, but, given that last week in his oral statement about transforming rehabilitation the Justice Secretary specifically said, in response to a question from me, that he accepted that the specific circumstances and needs of women had to be addressed, I hope, now that this provision has been passed in their lordship’s House, that Ministers will see no reason not to adopt it.

I was pleased to see provisions on judicial diversity and to hear the Home Secretary highlight them in her opening speech. As she said, there has been progress on the diversification of the judiciary, but much more needs to be made. The provisions in schedule 13, on the tie-break and the possibility of full-time equivalent appointments to the senior judiciary, are welcome. In particular, however, I want to comment on the duty now on the Lord Chancellor to encourage diversity in the judiciary contained in paragraph 10. That is certainly a welcome exhortation, but it is important that it not be left at mere words and that substantive progress be made. Willing the end is not the same as willing the means.

It is clear where some of the barriers and blockages lie. As right hon. and hon. Members have commented, women and ethnic minorities are particularly poorly represented in the judiciary. That is not so much the case in the tribunals and lay judiciary, so it speaks in part to difficulties that the Bar and solicitor professions have in developing a pipeline to find more diverse members of the judiciary. I would be interested to hear what work Ministers envisage doing with the Judicial Appointments Commission and the professions to start to strengthen professional routes for women, minorities and other groups with protected characteristics.

As my right hon. Friend the Member for Leicester East (Keith Vaz) said, it is important to have a judiciary that reflects the make-up of society. It is, without question, an issue of public confidence. It also broadens the perspectives that are brought to bear on judicial decisions, as Lady Hale herself highlighted in her submission to the review of the Judicial Appointments Commission. That is an important and valuable reason why we have a number of judges judging more challenging cases, and is a lesson we ought to reflect in the appointments process more generally.

I am concerned that when these provisions and other allied amendments were debated in the House of Lords, Lord McNally made great play of the role of the public sector equality duty in underpinning this clause and the other provisions on judicial diversity. When Lord McNally spoke, the public sector equality duty was a settled and fairly clear duty. Since that debate in June 2012, the Government have of course announced a full review of the duty, which leads me to ask how we can be sure that the very best provisions of that duty will be embedded in the judicial appointments process.

It is worth noting that the Judicial Appointments Commission has welcomed the public sector equality duty as a framework for working on diversifying the judiciary. It has been absolutely explicit in saying that it does not regard it as a tick-box exercise. It is important that we do not lose what has been good in offering a framework for diversification of the judiciary as the review of the duty continues. That is more of a concern now that the requirement to carry out equality impact assessments in relation to policy is being removed.

I am pleased to see specific provision for restorative justice in the Bill. That represents a good start—a good first step in legislative recognition of the value of restorative justice. There have been a number of comments today on the importance and challenge of persuading victims who may feel torn about whether to participate in such a process. I invite Ministers to look carefully at how the concept of restorative justice can be extended, so that it does not necessarily mean the offender meeting his or her victim. Prison Fellowship, whose work I have had the privilege of seeing in Styal prison, has been able to extend the concept so that victims, not necessarily of the women serving the sentences in the programmes they are running, are nonetheless able to act as proxy victims to enable the concept of restorative justice to be extended more widely. It is a powerful programme that deals with serious offenders. I hope Ministers will see the provisions in the Bill as a first step to learning what works effectively in restorative justice, and to looking for opportunities to extend the concept over time.

I want to say a few words about the provisions on non-custodial sentences and the focus on punishment in those sentences, which in most circumstances is now the norm. I recognise that there is a real issue of public confidence regarding community sentences, which is regrettable when they are so much more effective in terms of reoffending rates than short-term custodial sentences. That confidence will not be helped if we start to get the balance of sentencing provisions wrong so that the focus on rehabilitation and reducing the offending is lost and crime rates start to rise. I therefore ask Ministers to tell us how they expect to monitor the impact of this provision and ensure that a proper, rounded approach to sentencing is sustained as it begins to take effect. In my 16 years’ experience as a sentencer in the lay magistracy, it was rare that punishment was not an element of the sentences we imposed. Surely the most important test, however, is the outcome of a sentence. The outcome we want above all is that the offending behaviour stops. I therefore hope that the impact of this policy will be carefully monitored with that in mind.

On the provisions relating to location monitoring, as others have said, technological and other developments have enabled the use of electronic monitoring to be widened and extended since it was first introduced a decade or so ago. There are also some real civil liberties and information-sharing concerns about the use of these techniques. It is clear that on its own it is not a particularly effective method of reducing reoffending. It is also important that, in seeking to monitor and manage the whereabouts of an offender, we do not put members of the public, particularly those close to that offender, at greater risk. I highlight concerns about this provision when, for example, domestic violence has been an issue. I hope that Ministers will perhaps comment on that, and certainly bear it in mind.

The Bill contains a number of important provisions that open up an avenue to new thinking. I hope that this is not seen as a definitive and ultimate position in relation to steps that can be taken to reduce reoffending and improve protection of the public. There are interesting developments, but it is important that their efficacy and effect are carefully monitored. I hope Ministers will give us the assurance tonight that it is in that spirit that they are brought forward in the Bill.

20:16

[Mr Edward Leigh (Gainsborough) (Con)]

I want to speak in support of clause 38. It was inserted into the Bill by those in the other place, who voted 150 to 54 against the wishes of both the Government and the Opposition. That is quite an achievement and I pay tribute to the other place for what it has done. In passing, I say that I do not think that such a rebellion would have happened if the other place had been dominated by elected machine politicians, so once again the House of Lords has justified itself on a cross-party basis and forced the Government to see the light.

What does clause 38 do? It removes “insulting” from section 5 of the Public Order Act 1986. This is a free speech reform. It has been called for, for years by civil liberties groups, gay groups, Christian groups, secular groups, right wingers and left wingers. It is opposed almost by no one, apart from the Government, until today. Sinners are always welcomed when they repent very late in life, so we should welcome the Government to the lighter side. However, the Home Secretary did not seem entirely convinced, so I hope the House will forgive me for a few moments as I try to explain the rationale for this important campaign, which has been running for years and has united Peter Tatchell and myself—quite an achievement.

[Mr Burrowes]

I, too, thoroughly welcome this change. On the issue of repenters, there is another category that my hon. Friend has not mentioned—the Opposition. The shadow Home Secretary was distinctly ambivalent in welcoming the fact that the Lords have allowed us to see sense. Would my hon. Friend care to comment on that? While we may have the numbers, it is important to recognise the cross-party, cross-issue, cross-everything opposition to having “insulting” in section 5.

[Mr Leigh]

I do not want to be party political, because many Labour MPs have joined us in the campaign that we have been waging. This is not a Conservative-Labour issue. I cannot really understand why the Opposition are still equivocating when we have had such a long consultation and when the issues are not very difficult. I still hope that the Opposition, at the last minute, in winding up this debate, will get off the fence. The House, along with people who have been campaigning on the issue for years, are entitled to know where they are.

The campaign has been waged for a long time. I spoke about the issue in 2011, during the passage of the Protection of Freedoms Act 2012—that, too, was on Second Reading. I then tabled an amendment that was exactly the same as clause 38 in this Bill—unsurprisingly, as the same people who have been campaigning drafted both clauses. It was co-sponsored by 64 Members of the House, from every party and every shade of opinion. The Joint Committee on Human Rights—a Committee of Parliament—described it as a “human rights-enhancing measure”. We had been speaking on the issue for years, so we did everything to secure a debate. I do not want to talk too much about Government bad behaviour in the past; one should not perhaps do so when they have done something right. We got the measure tabled as new clause 1—we got there first at the end of the Committee stage. However, unfortunately, after we had got 10% of the House to co-sign it, the Government then took the unusual step—I will not say any more—of using a programme motion to prevent it from being debated. Why? Perhaps they feared that we might defeat the Government—something that happens very rarely in this place.

However, we did force the Government to have a consultation, which was great. The consultation started, lasted a whole year and closed on 13 January 2012—a year ago. We were still waiting and now we have a few words from the Home Secretary. That appears to be the end of the consultation, but it would still be useful to see it, because this is an important issue. We want to know why the Government have changed their mind on this, so it would be quite nice for the consultation, a year after it was closed, to be published.

Why is clause 38 so important? It is important because it removes section 5 of the 1986 Act, which was undermining civil liberties. The breadth of cases suggests that virtually anyone could find themselves at the wrong end of section 5. They have been cited several times, but I want to go through some good cases—there are many others—to show how section 5 was being used against civil liberties and freedom of speech. Section 5 was cited in a court summons given to a 16-year-old protester for holding a placard saying,

“Scientology is not a religion, it is a dangerous cult”.

A Tynesider named Kyle Little was convicted and fined under section 5 for saying, “Woof!” to two Labradors. Thankfully, that conviction was quashed. An Oxford student, Sam Brown, was arrested under section 5 for saying to a policeman,

“Excuse me, do you realise your horse is gay?”

Thames Valley police said:

“He made homophobic comments that were deemed offensive to people passing by.”

My friend Peter Tatchell was charged under section 5 for condemning the murder of gay people by Islamic extremists. His placards were deemed by police to be insulting and likely to cause distress. Blackpool café owner Jamie Murray was told by officers that playing DVDs showing text from the New Testament was a possible section 5 offence.

The police have often used section 5 to freeze debate and stop difficult people speaking out, but in this place we should cherish difficult people. That is what this place is about: cherishing people who do not always go with what the establishment wants. In another case, animal rights protesters were threatened with arrest and seizure of property under section 5 for protesting against seal culling by displaying toy seals coloured with red food dye. One of my favourite cases—I think I can end on this one, because it goes against what I normally talk about and believe in—involved an atheist pensioner in Boston, in my part of the world. He wanted to place a small sign in his window saying:

“Religions are fairy stories for adults”—

I never thought I would repeat that in this House, but that was his crime, apparently. He was told by Lincolnshire police—our very own police—that if anyone complained, he could be arrested and dealt with under section 5.

These cases are worrying. We might be tempted to blame poor on-the-spot decision making, but when there are so many, with such wide variation, and when some of them progress to the courts, it is no longer a joke. We have to conclude—and we have concluded; and now, thank God, the Government have concluded—that there is something wrong with the law.

[Dr Huppert]

It is a pleasure to be on the same side as the hon. Gentleman on this issue. What he has described is Liberal Democrat policy as well, and I am delighted that the Government have conceded on it, but has he given any thought to section 4A of the Public Order Act 1986, which also deals with insulting behaviour?

[Mr Leigh]

Perhaps my hon. Friend will deal with that in detail when he speaks, because he makes a good point. It is important in the coalition that we try to find things for which, philosophically and honestly, we can work. One thing that is deep in our joint tradition as Liberals and Conservatives is our desire for more freedom, so it is good news that the Government are going with the grain of what the coalition is about.

I hope the House will forgive me if I go into one or two details, because in the law the devil is always in the detail. Section 5 of the 1986 Act outlaws

“threatening, abusive or insulting words or behaviour”

if they are “likely”—that is the important word—to cause “harassment, alarm or distress”. Clause 38 simply deletes the lowest threshold of the offence—only the lowest; that is the important point—which is the word “insulting”. That would still leave the two higher thresholds of “threatening” and “abusive”. It is important to make the point that we are not removing protection from policemen for those who may feel themselves to be threatened in some way. We all know what being threatened is like: it is quite different from being insulted. The 1986 Act does not define the terms, but the courts say that we all know them when we see them, and I think that is right. A threat is when someone is “in your face” and there is fear of violence. Abuse is when there is, for instance, obscene language. That is why Lord Hurd brought in the law—he was concerned about football hooligans and concerned to protect decent, law-abiding people from feeling threatened or abused.

Insult, however, is clearly less serious and, above all, much more subjective. That is the point about the cases I read out: they are subjective. That is the problem. Most people are surprised to learn that insults are against the law in this country. They think that that kind of law would exist only in some kind of oppressive communist society, not in England and Wales, where traditionally we have given the world this concept of freedom of expression, and the freedom to insult people is an important part of traditional freedom. I believe—and we all know—that insults are minor compared with threats or abuse. An insult is a slight on one’s reputation; it can hurt feelings. Yet just because my feelings are hurt—because I feel that somebody over there has insulted me—should I attempt, or should the police attempt, to make them a criminal? I do not believe that is right.

That is why we have garnered support over the years so quickly. I think virtually everybody who has looked at this issue now supports us. I mentioned the Joint Committee on Human Rights, but those supporting us also include the Equality and Human Rights Commission, the Independent Police Complaints Commission, the Association of Chief Police Officers—that is important, because we were always told that the police were worried about this—the current Director of Public Prosecutions, as has been mentioned, the former Director of Public Prosecutions, Justice, Liberty, The Daily Telegraph, the Christian Institute, the National Secular Society, the Peter Tatchell Foundation, Big Brother Watch, the Freedom Association. The list goes on and on. Virtually everybody is off the fence and supporting us. We now just want the Labour party to come on board.

There is nothing party political about this issue. There is nothing in what we are arguing about that runs contrary to traditional Labour belief. After all, despite the Whips in the other place, the Lib Dems in the Lords voted for the amendment, now clause 38 in the Bill, by 29 to seven; Conservatives voted for it by 49 to 30; Labour peers rejected their own Whip and voted 23 to 16; and not a single Cross Bencher voted against it.

Frankly, I believe that this change is not due just to the fact that the Director of Public Prosecutions has come on side, as the Secretary of State said earlier. I believe that the Government comprehensively lost the arguments in the Lords. The Lords can be very good on these issues. The Minister was assailed from all sides. Even the Labour spokeswoman, Baroness Smith of Basildon had a difficult time. She suggested outlawing insults might be

“a useful tool which…enables the police to address homophobic and religiously offensive issues.”—[Official Report, House of Lords, 12 December 2012; Vol. 741, c. 1126.]

She cited a case in which section 5 was used to convict someone who peppered people on a train with foul-mouthed verbal abuse. From all sides in the House of Lords, it was pointed out that such behaviour is well beyond the scope of mere insults. It falls clearly into the realm of threatening and abusive behaviour; it would be untouched by clause 38. Under pressure from all sides, the Baroness was good enough to concede that she was open to looking at the evidence and was not opposed to change. We want to see a similarly open-minded attitude from the Labour party in this House.

The Minister in the other place, Lord Taylor of Holbeach talked about balancing free speech with the right not to be caused alarm or distress. We all agree with that, but what does it mean in detail? Do we all have to be vulnerable to prosecution for insults so that the police can have maximum flexibility to decide whom they will or will not prosecute? I do not think that the Minister’s arguments held up. He said that the “insulting” limb of the offence gives the police

“the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.—[Official Report, House of Lords, 12 December 2012; Vol. 741, c. 1130.]

Agreed—but the present law was just too flexible.

What we are doing today is right. It is interesting that one of the many Conservatives to rebel was Lord Hurd, the Home Secretary who brought in section 5. At the time he did so, he made it clear that it was not intended to undermine civil liberties. No doubt he has seen what the rest of us have seen: section 5 has undermined civil liberties. He wishes to put it right, the Government want to put it right, and I welcome what the Government have done today.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. I am changing the time limit to seven minutes for Back-Bench contributions with immediate effect.

20:31

[Andy McDonald (Middlesbrough) (Lab)]

I share with other speakers the view that there is much to be welcomed in the Bill, including the provisions on the diversity of judicial appointments, extending the jurisdiction of youth courts and drug-driving.

I note that the hon. Member for Croydon Central (Gavin Barwell) is not in his place, but I too would like to pay tribute to the work he has done. He is quite right in what he says about other instances of the same sort of events that affected his constituent. Some 10 or so years ago, when I was practising as a solicitor, I had the privilege to represent the Nellist family of Acklam in Middlesbrough. As they returned home from an evening out—they had not been out socialising for a long time—they got off the bus opposite their home and their young son Anthony was waiting for them to come back. He was peeping out of the curtains looking to see them come home. He saw his mum and dad walk across the road, only for Susan to be struck by a speeding vehicle coming down Trimdon avenue, knocking her some clear 70 yards down the road, killing her outright.

The self-same issues about impairment and the links between impairment and the charges levelled against the youth concerned raised their head in this case. I was involved not in the criminal side but in the civil case. When we served our proceedings on the defendant, he showed absolutely no remorse whatever. He was sentenced to a term of imprisonment. Bizarrely in those days, he served his driving ban while serving his term of imprisonment. I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw), who put right that wrong in subsequent years, making sure that any driving ban was served at the end of the custodial sentence. That made the sentence more relevant.

Is it ever right for someone in such circumstances ever to get behind the wheel of a car again? Perhaps we can take a look at that as we take the Bill through Committee. Given the tragedy suffered by that family and the fact that not everyone enjoys the privilege of driving a motor car, it is not acceptable for someone in those circumstances to serve a ban for such a short period.

I support the fight against organised crime, but we on the Labour side are concerned that the Home Secretary is undermining that fight by cutting the budget to tackle it. However, I am happy to recognise the valuable work of the north-east regional organised crime unit, which was established by the chief constables of Durham, Cleveland and Northumbria in March 2010. It consists of a specialised team of detectives who target the organised crime groups that pose the greatest threat to the communities in those three areas. No doubt the House will want to congratulate officers in the unit who, last Wednesday, used a warrant to search premises in Topcliffe, north Yorkshire, and recovered approximately 30 kg of heroin and an estimated 40 kg of amphetamine. The street value of the drugs is estimated to be between £6 million and £7 million. Two men have been charged; the investigation continues, and there is more to come.

There is a welcome consensus on the issue of avoiding reoffending. The starting point of the consultation was a good one: the Government acknowledged that nearly half of all adult offenders reoffend within a year of leaving custody, and also acknowledged the need for reform of the criminal justice system. Cleveland’s newly elected police and crime commissioner, Barry Coppinger—in common with many others—has made

“diverting people from reoffending with a focus on rehabilitation and the prevention of reoffending”

a key priority. So far, so good. It seems there is a common purpose, but the question must be whether the proposals in the Bill are adequate to assist the attaining of that vital objective.

The powers that the Bill seeks to introduce are already available to sentencers. They can already impose punishment in combination with other elements. Lord Woolf, the former Lord Chief Justice, described the proposals as

“offensive to the judiciary, who strive to ensure that each person dealt with by them is sentenced to the appropriate sentence.”—[Official Report, House of Lords, 30 October 2012; Vol. 740, c. 529.]

Lord Ramsbotham, the former chief inspector of prisons, called them “totally unnecessary and counter-productive”.

In the brief time remaining to me, let me say something about clause 23. My constituent David Jukes has written to me pointing out that 2,000 people are employed by Her Majesty’s Courts and Tribunals Service in the enforcement of criminal fines. I hope that we shall have a chance to ensure that the existing service is given every opportunity to be maintained and to succeed, and also to ensure that rigorous standards and targets are set for recovery of fines and fixed-penalty notices.

Finally and very briefly, I want to comment on the law of self-defence as it applies to householders. I recently went around the houses in Middlesbrough, and none of those on whose doors I knocked told me of their overbearing desire to knock seven bells out of a burglar. People were more concerned about, for instance, employment and being hit by the under-occupancy tax. We must think carefully about whether clause 30 takes us any further.

The hon. Member for North West Cambridgeshire (Mr Vara) referred to the guidance notes that are issued to officers. I rather think that that tells the tale: the notes are available to officers to prevent householders from being taken to court unnecessarily, under the law as it stands—

[Madam Deputy Speaker (Dawn Primarolo)]

Order.

20:39

[Fiona Bruce (Congleton) (Con)]

I congratulate the Government on leaving in the Bill the Lords amendment in clause 38, as it is wholly in accordance with the proud heritage of upholding free speech in this country. I thank Ministers for listening to those of us in this House, and many outside it, about the detrimental impact of section 5 of the Public Order Act 1986, as currently drafted. In this country, we have traditionally enjoyed great freedom of speech—we certainly have in this Chamber—but many people have felt that section 5 has curtailed it and undermined wider civil liberties, and that it needs addressing. As Liberty says in welcoming this amendment and discussing the need to remove “insulting” from section 5,

“the mere fact that this is a criminal offence is enough to stifle freedom of expression.”

It also states that

“section 5 can have a chilling effect on peaceful protest.”

In responding to the Secretary of State’s introduction to this debate, the shadow Secretary of State expressed reservations about the Government’s proposal to include clause 38 and invited examples of the detrimental impact of section 5 to be provided in Committee. I am pleased that my hon. Friend the Member for Gainsborough (Mr Leigh), to whom I pay tribute for his lengthy and persistent campaign on this issue, has cited some of the examples, and I wish to add a few more. I make mention of the couple who used to own a hotel but lost the business as a result of a prosecution under section 5, which arose from a conversation with a resident—a customer—who asked their views on a particular subject and then, when she did not like them, reported them.

[Mr Leigh]

The point is that this was not a threatening situation; it was simply a talk, over the breakfast table, in a bed and breakfast.

[Fiona Bruce]

That is absolutely right. Ultimately the case was thrown out by a judge, but the strain of enduring the prosecution process proved too much for that couple and they could not keep that business going.

I am particularly concerned about the arrests of individuals under section 5 for expressing views relating to their faith, because I am a committed Christian. Another case was that of Jamie Murray, who runs a café in Blackpool. He had displayed texts from the New Testament on his café wall but received a visit from two police officers who said that they had received a complaint and were investigating a possible offence under section 5. The complaint was simply about Bible texts. Bible texts can be found outside many churches across this land and inscribed on buildings. There are Bible verses on the floor of the Central Lobby in this place and I can even see scripture engraved on the door behind the Speaker’s Chair. However, section 5 is apparently so broad that police in Lancashire thought it banned the Bible. The obvious problem with section 5 is that the word “insulting” is too vague and too subjective; what one person might consider insulting may not trouble another at all.

Incidents such as those I have mentioned frighten people; even where the person does not end up with a criminal record, they create a chilling effect. I now know of church ministers who fear a knock on the door simply for preaching historic Christian truths at their own pulpits. That cannot be right, which is why clause 38 is so welcome. The wording of the current provision needs to be trimmed back; as the recent report by the Joint Committee on Human Rights said, it

“constitutes a disproportionate interference with freedom of expression.”

The Director of Public Prosecutions, Keir Starmer, has said that

“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”

A gap will not be left in the law; the word “abusive” should cover the issue satisfactorily.

I could cite many other instances, not necessarily involving faith aspects: the concerning issue of the 16-year-old man threatened with prosecution for peacefully holding a placard that said, “Scientology is not a religion, it is a dangerous cult”; the animal rights activists who displayed models of red seals, with the red representing blood; the street-preaching pensioner with Asperger’s who was convicted and fined under section 5 for holding a religious placard—Peter Tatchell, while not agreeing with his opinions, has fully and publicly expressed his right to express them. All or any of those cases, or the views expressed within them, might be regarded as controversial, but what hope is there for free speech if someone can dial 999 every time they hear something controversial? What a colossal waste of police time.

Many groups, as my hon. Friend the Member for Gainsborough has already stated, have expressed concern about section 5 of the Public Order Act, and I am delighted to note the support received in the Lords from so many worthy Members, including a former chief inspector of constabulary, a former Lord Chancellor, a former DPP and the chair of Liberty.

I also pay tribute to those outside the House who have campaigned on the issue, particularly those who have spearheaded the “Reform Section 5” campaign, with which I have been associated since its launch last year. It is a joint initiative of the Christian Institute and the National Secular Society; how many other causes could unite such implacable foes?

We are all familiar with the statement attributed to Voltaire: “I may disagree with what you say, but I will defend to the death your right to say it.” I know that that sentiment resonates within this House, and that is what clause 38 is all about. history has shown that, if societies do not take opportunities such as the one presented by clause 38 to underline and reinforce the importance of free speech, other precious liberties can begin to slide away. Once we cross a Rubicon and allow infringements of free speech, how many other freedoms disappear? I am sure that we all support the campaign of the Chinese journalists for free speech in their press; we should equally support clause 38 and free speech in this country. The United Kingdom has been a beacon of free speech to the world. This is a chance to underscore that reputation.

The publicity it has generated means that the debate on section 5 has been followed not only by a wide cross-section of society in this country but by people around the world. I hope that, through clause 38, we can give them something to celebrate and that Opposition Members will join us when we come to vote on it.

20:46

[John McDonnell (Hayes and Harlington) (Lab)]

I want to deal with a couple of clauses that have not been referred to so far, but before I do so let me express my support for the comments made by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) about clause 31 and the concerns expressed by others about clause 34 and visa appeals. The abolition of those appeals will have a direct impact on my constituents and I believe that there will be a considerable backlash in the community. Let me also express my support for clause 29, which abolishes the offence of scandalising the judiciary as a contempt of court. I understand which case that relates to, but I feel that scandalising the judiciary should be a right, if not a duty, every now and again.

Three clauses have so far not been mentioned in any detail. The first is clause 16, on the establishment of the family courts. It has been genuinely welcomed, as has the introduction of mediation in the processes of the family courts and the greater emphasis given to it. Concerns have been expressed, however, by Children and Family Court Advisory and Support Service officers and family law practitioners about the need to ensure that there is adequate insurance in the delegated legislation and the guidance that the views of the children in these cases are properly represented and protected. I hope that there will be further dialogue with professionals in CAFCASS, in particular, who will be able to advise on the detailed implementation of the legislation, and of this clause in particular.

Let me turn now to clauses 23 and 24. My hon. Friend the Member for Middlesbrough (Andy McDonald) mentioned the issue with clause 23, which effectively privatises the functions of the officers dealing with the collection of fees. They are judicial functions, which is a step forward in privatisation that we have not seen before. Clause 23 facilitates the contracting out of all the functions of fines officers and makes provision for the cost of collecting compensation, fines and other financial penalties to be recovered from offenders. That will effectively mean contracting out the functions of those officers to private bailiffs. Let me remind hon. Members of those functions: the decision to make a deduction from benefits order; the making of an attachment of earnings order; and the ordering or varying of the length of time to pay or the amount of the instalments that are payable. Those functions relate to the exercise of judicial power and the sentencing of criminals and they are to be privatised.

My concern about that is that as Members we have all experienced the role of bailiffs in our constituencies. In its evidence to Government in the consultation, “Transforming bailiff action”, Citizens Advice reported that it was dealing with nearly 25,000 cases involving problems with private bailiffs. Citizens Advice said that it

“has been seeing problems with the practices of private sector bailiffs for many years and these problems seem to be growing. Unfair practices we see include: misrepresenting powers; intimidating behaviour; charging fees in excess of what is allowable in law; failing to accept reasonable (in the circumstances of the debtor) offers of payment”,

and failing to recognise vulnerable debtors in particular. We are now passing over a key element of the judicial system to private bailiffs, who have this record of failure.

[Andy McDonald]

Does my hon. Friend recognise that the court staff have had some significant successes in recent times, increasing the rate of recovery by 14%? Does he agree that that improved performance is to be welcomed and that they should be congratulated?

[John McDonnell]

My hon. Friend has hit the nail on the head. There are 2,000 people out there in the service, consistently meeting the targets set for them by Government and improving their record of service by 15% last year, not 14%, as he said. These loyal, dedicated staff, who are professionals in their own field, have delivered, yet are being threatened with privatisation. We are handing over this function to a group of people who we know are causing large numbers of our constituents severe problems as a result of their behaviour in the performance of their duties in other areas of fine collection and in the system as a whole.

All that is being asked for is the opportunity for existing staff to bid for their jobs. As the Bill stands, they will be excluded from being able to continue to perform the functions that they currently perform. Moreover, clause 24 would make available information held by HMRC to private bailiffs for use in the collection of fines. That is a step too far and it breaches people’s ability to maintain personal privacy with regard to their taxation affairs. That was never envisaged in previous consultations.

We have had experience of privatisation in the Ministry of Justice in recent times. Members in all parts of the House have raised the problems that we have had with the contracting out of the court interpreter services, which saw only 58% of bookings met. It resulted in chaos in the courts and criticism from the Public Accounts Committee.

I urge the Government to think twice about the proposed privatisation of an important service that is critical to many of our constituents, and to back the concept that what works is what matters. If the existing system is working effectively, it should not be put at risk as a result of what seems to be an ideological decision, rather than one based upon practice. It would be worth while for the Minister to sit down with some of the existing practitioners to gain their advice and, if the Government want further improvements in the service, to work with the existing staff—with the grain of the service—to achieve those improvements, rather than to go forward with this wholesale privatisation, which will prove to be not only counterproductive but, for many of our constituents, catastrophic.

20:53

[Simon Reevell (Dewsbury) (Con)]

I shall concentrate on one aspect of the Bill: clause 30, which deals with self-defence and which has been touched on already by my hon. Friend the Member for North West Cambridgeshire (Mr Vara). The clause introduces important practical changes, but I wonder whether it concentrates too much on where things are happening and not enough on what is taking place.

The title of clause 30 is “Use of force in self-defence at place of residence”. It has been suggested that the result of the provision is that an Englishman’s home is his castle, but I wonder whether an individual grappling with a burglar at 2 am is worrying about where he is, rather than what is actually happening. In other words, is his concern the defence of his own person, rather than the defence of his property?

I hope that my examples will demonstrate the importance of that point. Imagine a person who runs a petrol station in a rural area and lives in a house 100 yards away. If he is attacked in his home, the new law will apply, but if he is attacked at the petrol station just as he turns out the lights and is about to lock up, or while he is walking from the petrol station to the house, it will not apply. Someone who works as a night watchman is protected by the new law while they are at home, but when they arrive for work, the provisions will not apply. A vicar is covered if the burglars come to the vicarage, but if he goes to investigate a light in the church at night and behaves in the same way there, the new law does not apply.

We have heard an interesting example involving a farmer. If a farmer hears a noise downstairs in his home and goes to investigate with a shotgun that he has taken from his gun safe in his hand, the new law will apply, but if, after he has been shooting legitimately, he is wandering back through his farmyard and goes to investigate a noise where all his expensive machinery is kept, and is then boxed in by the same people and reacts in the same way as in his home, the proposed law will not protect him.

Leaving aside the obvious point that we are asking people to remember that the law is different depending on whether they are at home, just outside their home or at work, notwithstanding the fact that they could be attacked by the same person in the same way and in the same early hours of the morning, a different test will apply if ever someone who is alleged to have breached the new law by behaving in a certain way is tried alongside someone who dealt with another member of the gang, but happened to do so in an outbuilding. The person who confronted one of the burglars in his home may rely on the new law, but his brother or son who behaved in exactly the same way towards another member of the gang in the outbuilding will not be protected at all.

[Dr Huppert]

The hon. Gentleman is setting out an interesting argument. Does he accept that anyone who uses only proportionate force, given the circumstances as they believe them to be, will always be protected?

[Simon Reevell]

The point of the clause is to put in place the new test, but that test applies only in a dwelling.

The clause gets even more bizarre when we consider proposed new subsection (8B), which deals with the corner shop with a flat above. A shop owner who comes downstairs from the flat and meets a burglar in the shop premises will be fine, because he will be covered by the new definition, but the person who lives next door and has to step out on to the street before going into the shop to start their work there for the day, and who encounters exactly the same circumstances when locking up for the night, will not be covered. If those two people meet the burglar while the premises are open, the shop owner who lives on site has the advantage of the new law, because the shop is part of the building in which their flat is located, but his assistant does not, so a different test will be applied to two people in exactly the same circumstances and encountering exactly the same villainy—and, indeed, the same villain.That cannot be a sensible revision, and the reason is that the focus is on the place of residence as opposed to what the problem really is, which is self-defence.

If this was reconsidered, and if instead of the test relating to the dwelling it related to whether the person was a victim of a criminal enterprise, all the examples I have given would be neutralised, because in all of them the person concerned would have been a victim of a criminal enterprise, whether it was in the church, the petrol station, at home, walking from one to the other, at work as a night watchman or outside as a farmer. If that were the trigger, the person concerned could rely on the new test, but as it is drafted, all those contradictions apply.

Subsection (6) makes it clear that this would not be a retrospective provision, and I understand that, but the amount of publicity generated by this clause means that to a lot of people out there the law has changed already. It would be ridiculous to have somebody waiting to face trial in circumstances where once the legislation was passed, a prosecution would never be brought, because the test would have changed. In whatever form the section appears in the Act, it needs to be introduced as soon as possible so that people do not rely on it before it is available for them to rely upon.

I should have said at the beginning, and so I say at the end, that I draw attention to the fact that, as a practising member of the Bar, I have an interest.

21:01

[Mr George Mudie (Leeds East) (Lab)]

I want to speak about the withdrawal of family reunion visas. The Government propose to do away with recourse to an independent judge, in place of which they say that a fresh application should be made to the same people who turned down the application in the first place—an additional paper might swing the case. I have 20 years of personal experience of visa work in my constituency. In 2000, the decision of the Labour Government was deeply and warmly welcomed by the ethnic communities, families who have come here but have mums and dads, grandparents and siblings in another country. We all speak about family values, but I think that all hon. Members will agree that they should be treasured. It is important that in the event of a wedding, a birth, an illness, a funeral, even just so that the old lass can see her daughter and grandchildren, family members should have the opportunity to visit.

I want briefly to describe some of my experiences. There is the elderly person, an old lass, from a village in Pakistan who wants to visit her daughter and granddaughter. The decision is that there is something in the papers—something that the old lass knows nothing about—that leads someone to believe that the motivation for coming is not the one set out. Case closed—refused. There is the person who has come here two or three times and every time has returned home within the visa period, but that is not taken into consideration. They are not trusted to go back. Cases are turned down because documents not asked for were not given. I had a recent case concerning a man who I thought was 80, but rather than mislead the House I will settle for the 70s. One of the reasons for his being turned down was that he did not give the entry clearance officer any details of his employment. The provision means that the applicant has to go back to that entry clearance officer for a decision rather than an independent judge.

It might be said that I am prejudiced about those cases, but I have three reports from the independent chief inspector of borders and immigration, John Vine. The second one says:

“While there were no decision quality issues revealed in 761 cases”

out of 1,500 cases

“I found there were errors affecting decision quality in 515 cases. In a further 201 cases the lack of evidence retained on file made it impossible for me to assess whether the correct decision had been made.”

The same report from 2011 said:

“The general quality of decision-making can and must be improved.”

In 2010 John Vine discovered that UK Border Agency managers were dismissive of determinations made by immigration judges to allow appeals. More importantly still, he found that because these cases were being dealt with in Abu Dhabi, where all the Pakistani cases go for a decision, people from the Gulf were being treated in a better fashion than people from Pakistan. It took John Vine’s intervention to address that. He is saying, as the professional commissionaire, that there is a lot wrong.

My personal experience—I think this goes for any inner-city Member with a large ethnic community—is that the situation is dreadful. The Minister will say, “No, we’re not asking you just to pay the fee again and send it back—we’re suggesting that you read the decision, see what basis you have been turned down on, and send those papers.” I have got news for the Minister: if someone brings me a decision letter and asks for my help, I go through it closely to see what the entry clearance officer is asking for or is turning a person down for, and then write a considered letter, get the evidence and send it for a review, as every Member of this House can. I can count on one hand the number of times when the entry clearance officer changes the decision; despite the fresh evidence, the decision is upheld. The Minister is going to tell our communities, “Don’t go to an independent judge.” Why do people want to go to an independent judge? It is not because 38% of cases are accepted, but because they will have someone who will listen, ask questions, ask for documents, and take a decision based on all those points.

I plead with the Minister to reconsider the heartbreaking decision to withdraw this right of appeal and to keep it, because it is desperately needed.

21:07

[Mr David Burrowes (Enfield, Southgate) (Con)]

I declare an interest as a criminal defence solicitor.

I welcome the Bill and want to draw out some nuggets that I believe can, in certain circumstances, be refined to be even more golden. On the whole thrust of the Bill in terms of efficiency and coherency, I welcome and support the single county court and single family court provisions. I particularly draw the Minister’s attention to the jurisdiction issue in relation to the youth court. The Government’s approach is to triage cases into the appropriate courts. The nugget that I particularly welcome is the change giving youth courts the power to grant gang-related injunctions. That is welcome in my constituency and in the borough of Enfield. We were the first north London borough to obtain a gang-related injunction, which led to a 14-month prison sentence. Indeed, the cross-partnership work in the borough has led to a 50% reduction in serious gang crime-related violence.

However, there needs to be flexibility. We can perhaps go further in making this nugget even more golden when dealing with young offenders. We have seen across courts the value of community justice, having drawn from America the examples of Red Hook and Harlem, and now there is the example of Liverpool as well. In our whole approach to community justice we must recognise that when someone comes to court they come with a whole package of concerns that may well go across jurisdictions. That arises particularly when dealing with young offenders, given the need for timely and effective intervention.

From my experience over the years, I know that young offenders often come with a package of family problems. They might well be the victims of abuse. There will often be parenting issues, and some children who appear before the youth court should be in care. At the very least, they are likely to be vulnerable. The magistrates who deal with them often also sit on the bench of the family division, and they have been expressing their frustration for a number of years that they cannot intervene quickly to enable those young people to get into the family court where appropriate welfare orders can be made. That is what happens in the Scandinavian jurisdictions, and the possibility of it happening here has been mooted by the Government in the past.

This is not a new issue. I refer hon. Members to the Home Office consultation document produced in March 1997 entitled “Preventing Children Offending”. Paragraph 103 states:

“Under the law at present, the Youth Court is not able to refer children to the Family Proceedings Court for consideration of a care or supervision order. It is possible that this might be a useful additional power which would enable the Youth Court to deal more effectively with difficult children.”

We then had an election, and the rest is history. I still believe that that proposal would be welcome, however, and it should be looked into. We have an opportunity to try to get young people into the right jurisdiction. The proposal has also been welcomed recently by the Youth Justice Board, which is very supportive of it. When John Drew, the chief executive, spoke at the board’s annual conference in November, he welcomed the opportunity, in appropriate cases, to get children to where they needed to be, which could well include the family court.

Another nugget in the Bill is the provision on community penalties. I welcome the proposal to ensure that there will be a punitive element to them. That is appropriate because, when an offence is serious enough to warrant a community penalty, the deprivation of liberty must be implicit in that penalty. That will now be the case. I also welcome the provision to allow the courts to defer sentencing at the pre-sentence report stage in relation to the provision of restorative justice. Fifteen years ago, I was involved in a pilot at Haringey magistrates court in which sentencing was deferred to accommodate restorative justice conferencing. We have been through many such pilots and reviews over the years, and the evidence is clear. It is about time we got on and dealt with this, and I welcome the fact that the Government are now pushing the measure forward. It will be based on the need not only for restorative justice but for quality restorative justice. We need to look at the details to ensure that the right people will be dealing with the provisions, and that the provisions are victim led and carried out to the satisfaction of the victims. That could well lead to a reduction in reoffending.

The hon. Member for Hayes and Harlington (John McDonnell) mentioned the provisions on fines. I welcome the changes in the Bill. Yes, they may lead to contracting out; “may” is a very important word in legislation. This is not about wholesale privatisation. The ideological bent is that we are on the side of the victims, all too many of whom are not receiving the compensation due to them. The financial penalties involved are simply not being paid, which is why we need to pursue all options to ensure that fines can be collected more effectively and quickly, especially in relation to compensation orders. The burden of the collection costs should fall not on the taxpayer but on the offender, and I welcome the fact that that will now happen.

I also welcome the new offence of drug-driving; it is about time that it was introduced. As a legal practitioner, I have defended many cases that were unable properly to be proven in relation to the impairment caused by an intake of drugs. I have seen the gaps that prevent such cases from being properly proved in court. The Bill provides clarity in that regard. We need to proceed with caution, however, and to ensure that cases are based on evidence and examine the specified levels. This is a complex area in relation to particular opioids and certain other drugs. We need to focus on ensuring clarity in the law, so that we do not allow people on prescribed medication to fall foul of the legislation, when its target is those who are flagrantly taking drugs and going out in a vehicle and causing a menace to others.

There is a medical defence in the Bill, but that might not be enough when a person is arrested and taken into custody. That person will have had their liberty taken away and will then have to prove their medical evidence in court. We shall have to see how we can deal with such cases proportionately, when we produce the guidance. On sentencing, I note that schedule 18 contains a provision to up the sentence for being unfit to drive owing to drug-taking to the equivalent of the sentence for causing death by dangerous driving. We need to ensure there is equity with driving with excess alcohol.

I welcome those and other provisions in the Bill, some of which will perhaps receive further refinement in Committee. I am also grateful to the Government for acceding to the wish of Members across the House and in the other place that the term “insulting” be removed from clause 5. That is welcome on the grounds of religious freedom and freedom of speech; it also demonstrates common sense.

21:14

[Mark Durkan (Foyle) (SDLP)]

I join other hon. Members in welcoming clause 38 as a sensible, proportionate adjustment with regard to public order. Clause 29, which the hon. Member for Hayes and Harlington (John McDonnell) has touched on, would remove the offence of scandalising the judiciary in England and Wales. However, the change is being made because a Member of this House found themselves cited on exactly that charge in the courts of Northern Ireland, so the issue is not being addressed where the problem arose. Will the Minister clarify whether, when and if the Northern Ireland Assembly gets around to having a legislative consent motion, that consent could allow the Bill to be further amended so that the removal of the offence of scandalising the judiciary in Northern Ireland could be accommodated?

Other aspects of the Bill also relate to Northern Ireland. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) has just come back into the Chamber at the wrong time, because he will hear from me the familiar refrain that he used to hear when he was security Minister for Northern Ireland. I think that, in his book, I and my party colleagues are Patten pedants. We are insistent on keeping to the precise architecture, thrust and spirit of the Patten policing reforms and to protecting the Patten dispensation. The previous Government did some injury to that as a result of moves to put national security policing in Northern Ireland in the hands of MI5. Those activities were moved beyond the purview of the accountable policing structures in Northern Ireland, such as the scrutiny undertaken by the Police Ombudsman for Northern Ireland for the Northern Ireland Policing Board, which is where the ombudsman had been sensibly and deliberately placed.

The establishment of the National Crime Agency adds a further complication, because the Bill will create an additional police force and constables. Indeed, special constables will be created again in Northern Ireland. Having many years ago, courtesy of the civil rights movement, seen off the B Specials, we now face the potential appointment of NCA specials by the director general of the National Crime Agency. If we look at the Bill’s schedules, we will see that some people can be both NCA specials and Police Service of Northern Ireland officers, but that anything they do in one capacity cannot be cited in relation to anything they do in the other. The Bill provides that they can hold, coterminously, those two sets of constable powers, which will have serious implications for the Policing Board with regard to its key oversight role on policing. It will also create potential difficulties down the road for the police ombudsman in dealing with any complaints, and it means, presumably, that officers who are both NCA specials and PSNI officers will be subject to two separate complaint authorities.

[Paul Goggins]

My hon. Friend is making some important points that the Committee will need to consider in detail when the Bill is scrutinised line by line. Does he not agree that the most important thing is that, when a Serious Organised Crime Agency officer and, in future, an NCA officer acts with the powers of a constable in Northern Ireland, they should be as accountable to the police ombudsman as they would be if they were a police officer of Northern Ireland?

[Mark Durkan]

That is one of the things that has to be tested and clarified. If we look at some of the ousters that seem to be built into the schedules, we see that it appears that somebody cannot be cited in one capacity for something they do in another. That needs to be tested in Committee.

The Bill provides for a compulsion to be issued to the Northern Ireland Policing Board. There is obviously provision for there to be co-operation and engagement between the NCA and the Police Service of Northern Ireland, but there is also provision for directed assistance, which allows the Department of Justice to direct the Policing Board to provide particular assistance, whether or not the Policing Board wants to make that provision. It seems to me that the director of the National Crime Agency will be in a position almost to require the Department of Justice to, in turn, impose a requirement on the PSNI via the Policing Board. The Policing Board was given specific, deliberately assembled and properly protected powers in the Patten dispensation. It seems to me that those are being casually injured in these provisions.

Many people in Northern Ireland will judge the performance of the National Crime Agency on whether it improves on the work that has been undertaken by SOCA and the Organised Crime Task Force, which is linked in to HMRC, SOCA, the PSNI and the Garda Siochana and deals not least with the issues of fuel smuggling, drugs and waste trafficking. People will ask about the difference between the NCA and SOCA. We know that the NCA will have four command areas and a bigger brief. I suppose that it is like the old advert for Baxters soup: “The difference is in the thickness.” People will want to know whether the difference is in the effectiveness of the way in which the agency works. In Northern Ireland, many of us are also concerned about the effectiveness of its partnership and engagement with others, such as the PSNI and the oversight mechanisms. It seems to me that not enough sensitivity has been shown so far to the interests of the Northern Ireland Assembly or the Policing Board.

This is an example of a Bill that could have particular implications in Northern Ireland. Yet again, the Government tell us that there will be a legislative consent motion from the Assembly, but no legislative consent motion has been put. This is another example of there not being joined-up scrutiny between legislators in this Chamber and in the devolved Assembly. With the Welfare Reform Act 2012, we had a different device. That legislation has passed through Parliament and it is just assumed that a karaoke Bill will be taken through the Assembly, with people able to change very little. They can sing it in their own accent, but no significant details can be changed, and yet it appears on paper as though it is a Bill. The legislative consent motion from the Assembly for this Bill will probably come after it is done and dusted. There needs to be better, more joined-up scrutiny on such matters.

Finally, I join other hon. Members in expressing concern about clauses 34 and 36 in relation to immigration and visas.

[Several hon. Members]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. I am changing the time limit again. There are three remaining speakers. We need to get to the winding-up speeches by 9.40. I will set the limit at six minutes, but if there are interventions, I will reduce it again.

21:23

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

This being a lawyers’ Bill, I am tiptoeing in with great caution. I will touch briefly on two issues, the first of which is self-defence.

I learned a little about the self-defence issue a few years ago when I observed one of my neighbour’s windows being jemmied open by a gentleman. As he went through the window, I collected him by his heel and brought him back. He and I had a physical discussion, shall we say, and when the police arrived to collect him, he pointed out that his face was a different shape from the face that had arrived on the premises. While saying “I know my rights,” he asked the police to arrest me. Fortunately for me, the police took the gentleman away. When the policeman came back, he said to me, “At least you remembered to turn him round before you hit him. Therefore, it’s self-defence.” I did not say a word, but I went off and prayed, which is rare.

In my constituency, there are a lot of shops in the villages, most of which have accommodation attached. Many of them are burgled on and off by people coming down from London, and this change will give them just a little more of a feeling that they can use self-defence. Some of them do so—some of them use self-defence that comes on four legs with a lot of teeth. I hope that the retail aspect of the provision will cover more than just shops, because many of my villages have cafeterias, restaurants and pubs. I wonder whether the Bill will apply to pubs as well as shops, because almost all my local pubs have residents above them.

[The Minister for Policing and Criminal Justice (Damian Green)]

indicated dissent.

[Sir Paul Beresford]

From the way the Minister is shaking his head, perhaps it will not.

The right hon. Member for Wythenshawe and Sale East (Paul Goggins) mentioned CEOP, and I must congratulate him because it was a wonderful invention. It has been very effective and is getting more so. Unlike him, however, I believe that it should be in the NCA. CEOP works nationally and works for the UK internationally, examining individuals, gangs in the UK, international trafficking gangs and some of our citizens who take their child sex activities overseas. It is a logical step to link it with the organised crime police teams, the immigration teams, the border teams and so on.

The previous chief of CEOP was opposed to the proposed change and resigned in a bit of a huff, which I really think was illogical. Peter Davies, the newish head of CEOP, is right behind the change. I believe that is as well, because we are starting to see new nasties appearing in the field. There are signs of increasing trafficking, ritual abuse and possible multiple murder. The depths to which child abuse appears to be able to sink are beyond what any of us would have thought. The police are fighting it, but setting up the NCA with CEOP as part of it must help us, and I certainly support the Bill and CEOP’s move into the NCA.

21:26

[Dr Julian Huppert (Cambridge) (LD)]

It is a pleasure to be called to speak. This is a large Bill, and it has been noticeable that most of the debate has focused on a few specific parts of it. That is a tribute to the fact that the rest of it is clearly less contentious and rather more successful.

I wish to highlight a few concerns that I have. I welcome the creation of the National Crime Agency in part 1, but an important question is how we can keep the SOCA brand internationally. I look forward to the Home Secretary’s work on that. I have a couple of concerns about how the NCA is to be inspected and made transparent. The Bill allows for Her Majesty’s inspectorate of constabulary to examine the NCA but allows discretion as to whether the Independent Police Complaints Commission will examine it. It seems to me that the NCA will be fundamentally a policing body and should be subject to the IPCC in the usual way. I hope that that will happen through primary legislation.

Similarly, the NCA is excluded from the Freedom of Information Act 2000. In many cases, of course, it would be inappropriate for it to be subject to FOI, but a number of other organisations, such as the police, the immigration services and Customs are not exempt but provide information where they can. It would be in the interests of transparency for a similar provision to be made in this case.

I do not have time to go through the details of much of the Bill, but I am aware that clause 30 has received a lot of interest in the House. It is clear that the current law allows force to be used against a trespasser if that force is reasonable and proportionate in the circumstances as they were considered at the time. That is an important defence, because people can make errors of judgment in the heat of activity. However, the Bill takes it a lot further, as it will mean that somebody can use self-defence even if they use a disproportionate level of force given the facts as they believe them to be at the time. It will not allow grossly disproportionate force, but it will allow people to be disproportionate.

I absolutely understand that in many cases, someone who has tried to defend themselves should not be arrested but should be treated as a victim while the matter is examined. However, it seems to me that people should be sensible and use only proportionate force, and that we should not allow disproportionate force. We need a change not in legislation but in how the police interact with people in such circumstances.

There is some extremely good stuff in schedule 15 to the Bill about restorative justice—an issue core to Liberal Democrat thinking for a long time. A lot of research backs up the role of restorative justice, and I pay particular tribute to Professor Larry Sherman who has done a huge amount of the fundamental research showing how effective it is. I am pleased that the Government are putting money into restorative justice but they may need to make rather more than £1.5 million available, particularly if it turns out to be successful and very popular. We know that restorative justice reduces reoffending and is far more satisfactory to victims than prison is. I am also pleased with progress on community sentencing.

There has been a large discussion about family visit visas and there is a problem with the incredibly high appeal rate—the figure I have seen was something like 60%. It seems that there are two possible solutions: the first is to have better decision making by UK Border Agency, and the second—the option the Government have chosen to adopt—is simply to stop appeals happening. We need the Border Agency to be much clearer about the information it requests and give people the opportunity to provide extra information that was not initially required. That could solve the problem in a far simpler and less draconian way.

I would be grateful for the Minister’s comment—it may be a written answer—on the specific issue of citizenship for the children of unmarried British fathers when the child was born before 2006. The former Immigration Minister has highlighted that the anomaly would be changed when there was legislative opportunity, and I wonder whether it might be possible to include that in the Bill. If not, we will have to wait until the next one.

I am delighted that the House of Lords voted to remove the word “insulting” from section 5 of the Public Order Act 1986. That is in line with Liberal Democrat policy and we have already heard many instances of where that provision was unreasonable. I hope the Government will reflect on section 4A of that Act, which has similar provisions about insulting behaviour. There are other steps that I hope the Government will consider or review to try to protect freedom of speech, such as, for example, section 127 of the Communications Act 2003, which was used so inappropriately in the Twitter joke trial.

In the last minute remaining, I want to consider drug-driving. I am strongly in favour of a drug-driving offence that mirrors that of drink-driving. There is definitely a problem with people who are incapable of safely driving a vehicle being in a situation where they could cause serious to harm to others. That is right and I accept that the current position requires too high a level of proof. However, one should not use this measure as an excuse to deal specifically with illicit drugs; it should be tailored to existing levels of impairment. In fact, alcohol seems to be the most worrying issue.

A specific issue has been raised with me by Napp Pharmaceuticals, a company in Cambridge that is concerned about the effects of the proposed legislation on patients taking legitimate, prescribed medicines, in particular to manage chronic pain. There is significant evidence to suggest that their ability to drive may not be impaired compared with other drivers, but the patient would have the onerous burden of proof to show that they should be allowed to drive. Napp Pharmaceuticals is concerned about the consequences of that and would rather stick with the approach of the Road Traffic Act 1988. I hope the Government will reflect carefully on that.

21:33

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

There are some very good things in this Bill, but while I declare my interest in justice for families and concern about miscarriages of justice in the family courts, I have to say that it is also a missed opportunity. Lord Bingham’s excellent book “The Rule of Law” identifies eight principles for the rule of law. The first two are that the law should be accessible and not depend upon judicial discretion. That underlines that law should be comprehensible to non-lawyers and hence it should be possible to identify miscarriages of justice even when appeals are not allowed by the Court of Appeal. The Court of Appeal should not be seen as having a form of papal infallibility.

My academic qualifications are in science rather than law, and that is where my concern about family court proceedings comes from. Rachel Pullen’s case—I recently assisted her to send it to the Grand Chamber of the European Court of Human Rights—is a perfect example of that. She was deemed on the basis of a single expert report to have a significant learning disability and not to have the capacity to instruct a solicitor. I am, however, lucky enough to have had access to a second expert report, the comments of her GP and an IQ assessment for employment, and to have met her. All those things point to the original expert being plainly wrong. However, the case has been considered by the county court, the Court of Appeal, the House of Lords Judicial Committee and the initial Chamber of the European Court of Human Rights without that being picked up.

Sadly, that case is not unique. I have spoken previously in Westminster Hall on 21 March—at column 244WH—about other people whose mental capacity has been wrongly removed from them and I will not repeat those details now. If a case can travel through the appellate system to Strasbourg without the scientific facts being properly determined or even open to challenge, there is a serious problem.

A more recent case is unique because the mother kept her capacity, having faced its removal after an allegation of querulous paranoia by her barrister. She had been asked to spend £3,880 on an expert’s fee, even though the NHS had previously found no diagnosable conditions and her employer stated that she seemed fine. Nevertheless, she managed to win the battle as litigant in person with the assistance of a McKenzie friend. That does, however, raise serious questions about equality of arms. Nothing in the Bill will improve the situation when many people have their capacity wrongly removed or improve the quality and accountability of scientific expert evidence. There are two possible solutions: a Daubert procedure would assist for a case-by-case review, while allowing academic access to secret proceedings, as I suggested in my family justice private Member’s Bill, would provide a level of quality control currently lacking.

The proposal in the Bill to allow proceedings to be broadcast could help to improve the integrity of the legal system. Early-day motion 536 refers to a case heard on 2 May. Initially, the McKenzie friend who assisted the mother in that appeal told me it had been allowed, but after I chased it for six weeks’, a transcript was found stating that it had been lost, which caused me concern as I had been told that it had been allowed. I therefore wrote to the court in July requesting that I be allowed to listen to the official recording, but I got no response.

Hence in October I wrote to the Minister. I then had a response from both the Court and the Minister saying that the rules had been changed and that I could not now listen to the hearing. I wrote asking for the reasons, and it was only in late December that I was told by the judicial office that the Judicial Executive Board had decided not to allow people to listen to official recordings. Its argument was that in theory a recording in open court could include legally privileged material. I would argue that someone speaking in open court who knows that everything is being recorded would not expect the conditions needed for privilege. The judicial office has also said that the JEB is not subject to the Freedom of Information Act, and hence we have no idea who participated in the meeting that made this decision or when it was taken.

To me that looks like a cover-up, but we do not know. If it is, we need to know who was involved, how high it went and why. It is puzzling that people have failed to say when this rule change happened. If the pronouncement of the judgment was broadcast, under clause 28, we would have an independent copy of the hearing and would be able to check why there was a discrepancy between the report of the hearing and the official transcript. Another thing missing from the Bill is a proposal to make the JEB clearly subject to the Freedom of Information Act. It is arguably caught by the Judicial Studies Board being subject to FOI, but that is not made explicit in the Act.

The difficulty in obtaining transcripts of judgments is an important problem that is causing difficulties in ensuring that the appellate system operates properly. There were two cases in Birmingham recently where there was no transcript on the file. It took almost three months to obtain the transcript in one of these cases. The Bill does nothing about this. Furthermore, an appeal from the family proceedings court to the county court can exhaust domestic proceedings. That might be good for anyone wishing to take a case to Europe, but it raises a further question about the integrity of the legal system if the Court of Appeal cannot look at something before it leaves the domestic jurisdiction. The Bill, in creating a single family court, might deal with this, but it is a matter of detail that needs to be sorted out.

I have helped litigants in person with three cases that involved appeals in the Court of Appeal where the appeal was allowed. I will not go into the details, because I do not have time, but all the appeals were allowed. One can have no certainty that any of these appeals would have gone before the Court without my involvement, and I am not a lawyer. I see many cases that I think would win appeals, but it is simply the procedural complications of getting the paperwork together, including access to the original case files and judgments, that prevents this.

I am also aware of a number of cases where a party is frightened to appeal because they are likely to face the judge in the Court of First Instance again and fear the use of judicial discretion to punish them for appealing. To me, appeals that have the potential to be allowed but which are not heard are miscarriages of justice just as much as the case referred to in early-day motion 835—a case where the parents were banned from talking to the media in any way. The Bill does nothing to deal with any of those situations.

The Bill does deal with conflicts of interest relating to judges—in paragraph 8 of schedule 9—but it remains the case that a firm of solicitors can act for parents in one case against a local authority and act for the same local authority in a second case, even with the same individual solicitor doing the work. That is a clear conflict of interest and gives rise to what is known as repeat player prejudice. I have seen a number of cases where this conflict of interest appears to have had an effect on the advice given and the consequent outcome for parents. A social worker previously told me how he had colluded with parents’ solicitors to ensure that the parents lost. However, this conflict of interest appears to be tolerated by the system, and the Bill proposes no modification.

The House of Commons often does not manage to scrutinise proposals effectively where there is not a proper party or adversarial division. This, even if I rushed my speech, is one of those areas.

21:39

[Jenny Chapman (Darlington) (Lab)]

I am afraid I will sound rather slow after the previous speaker. The hon. Member for Birmingham, Yardley (John Hemming) made a speech at great speed; he managed to read it quickly into the record—well done.

My right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) added his support for GPS tagging, which we will explore further in Committee. He made some sensible comments on restorative justice, emphasising the need for consent and full involvement of the victim at all times—something we will also explore deeply in Committee. We are very keen to ensure that the quality of restorative justice is maintained.

My right hon. Friend the Member for Blackburn (Mr Straw) spoke of the tensions between national and local policing, and gave his support, following Norgrove, for the single family court, as did the hon. Member for Enfield, Southgate (Mr Burrowes). My right hon. Friend the Member for Blackburn gave a succinct analysis of what is becoming known as the “bash a burglar” clause, and promoted his memoirs. We all look forward to the film of those memoirs. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) suggested that the clause was not actually that great a change; in fact, he said it was not a change at all. The hon. Member for Dewsbury (Simon Reevell) discussed at some length the complexities and contradictions in the Bill. He highlighted some issues that I think will get a thorough airing in Committee.

The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) raised concerns about the anxiety of witnesses arising from the televising of court proceedings. We look forward to exploring those concerns fully in Committee. We are keen to ensure the protection of witnesses, victims, jurors and also defendants through the court process.

My right hon. Friend the Member for Leicester East (Keith Vaz) and my hon. Friend the Member for Leeds East (Mr Mudie) mentioned something that I think will be of grave concern to many Members: the right of appeal on family visit visas. There are fears about the serious impact on families. Bearing in mind the high level of errors in decision making, we are keen to discuss that further. My right hon. Friend the Member for Leicester East went on to discuss the welcome changes to drug-driving. We can all commend the hon. Member for Croydon Central (Gavin Barwell) for the work he has done in that area.

My hon. Friend the Member for Stretford and Urmston (Kate Green) spoke with great insight on diversity in the judiciary. We strongly welcome those changes. We are also keen to explore the issues raised by Alan Milburn in his social mobility report on the under-representation of state-educated people in the judiciary.

The hon. Members for Gainsborough (Mr Leigh), for Congleton (Fiona Bruce) and for Cambridge (Dr Huppert) spoke of the importance of amending the Public Order Act 1986. The hon. Member for Gainsborough asked that the Labour party keep an open mind, and I assure him that we will do just that.

My hon. Friend the Member for Middlesbrough (Andy McDonald) is concerned about whether there will be sufficient resources to fight organised crime, and we share those concerns. My hon. Friend the Member for Hayes and Harlington (John McDonnell) discussed the scandalising of the judiciary, suggesting that it should not just be a right, but perhaps become a duty. He discussed clause 23 and expressed concerns about the practices of bailiffs, and I assure him that we will be exploring those concerns in Committee.

The hon. Member for Foyle (Mark Durkan) talked about how the National Crime Agency will operate in Northern Ireland, and the Government will need to respond to his concerns. The hon. Member for Mole Valley (Sir Paul Beresford) talked about the hotbed of crime that is his constituency, and about the Child Exploitation and Online Protection Centre. We have concerns about child protection and the NCA, which we will explore further. We are happy to give support to much of the Bill and we will not vote against it on Second Reading.

On self-defence, there is agreement across the House that a victim of burglary, who is compelled in traumatic circumstances to use force for their own protection, should be protected in law. Burglary is a terrible and invasive crime. Victims must have the right to defend themselves and their loved ones, and know that the law is on their side. The Labour Government changed the law to give that support to victims of burglary. In 2008, Labour gave victims the right to use “reasonable force” to defend their homes. That is not “reasonable force” as decided by a risk assessment; it is force that, as the Crown Prosecution Service and the Association of Chief Police Officers put it, is

“what you honestly and instinctively believe is necessary in the heat of the moment”.

The current law provides a complete defence for those using reasonable force in self-defence or the defence of their loved ones or property, and according to the Director of Public Prosecutions it works very well.

[Mr Vara]

The hon. Lady cites the CPS, but what does she have to say about the fact that at least four Metropolitan Police Commissioners, including the present one, believe that the law should be strengthened and enhanced?

[Jenny Chapman]

As I was about to say, we are ready and willing to engage with the Government on any proposals they have that might further improve the law. We want to see the system work as best it can for victims of crime and, of course, to see justice done in every case. However, concerns have been expressed by many outside this place, and these need answering. The Government need to assure the public that the change does not add confusion and explain exactly how it adds protection. The line between “disproportionate” and “grossly disproportionate” is still unclear.

While we are talking about how people protect themselves during a burglary, we should be just as keen to discuss how we punish a burglary or prevent it in the first place. My right hon. Friend the Member for Tooting (Sadiq Khan) has uncovered disturbing statistics about some of the sentences being handed to burglars with strings of previous convictions. The Government are introducing a number of measures in the Bill on community sentencing and the use of measures such as tagging. We need to ensure that they are used appropriately. When the Bill was introduced in the other place, it included, at the end of part 2, a rather vague clause that promised the Secretary of State for Justice scope to do what he pleased in the area of community sentencing. It is therefore welcome that, after a wait, we find that what pleases the Secretary of State has been laid out in schedule 15 for debate in this House. We welcome the inclusion of proposals permitting the extended and earlier use of restorative justice. Restorative justice is an effective tool that can do a lot to improve the experience of our justice system and what it offers victims of crime. There are questions that need to be answered on the details, however. How, where, by whom and how uniformly will restorative justice be provided?

There is much that we agree on. In his foreword to the long anticipated response to the Government’s consultation on community sentences, the Secretary of State states that, in order to be both “credible and effective”, community sentences need to strike a balance between punishing an offender for their wrongdoing and rehabilitating them to prevent a repeat offence. He also rightly notes that the public reserve some concerns about community sentences. The ambition of improving public safety and public confidence is strongly welcomed and shared across this House. In order to be “credible and effective”, however, the Secretary of State needs to get this right. The Government say they want all community sentences to include a punitive element, unless there are exceptional circumstances. We support the premise, but two questions arise: what counts as a “punitive element”, and what counts as “exceptional circumstances”? Until we hear the answers to those questions, we will not know whether there is anything new in the Government’s plan or whether the change is nothing more than window dressing.

On the extended use of tagging, we do not want this used inappropriately as a cheap alternative to prison for those who should be behind bars. If the public are to find such sentences credible, they need to be certain that they will be used with great discretion and only when wholly appropriate. I note that in 2011, eight adults convicted of rape and hundreds convicted of serious violent offences were given community sentences. It is also timely to mention the point that the public need to have faith that those supervised in the community rather than in prison are being expertly and safely supervised. This is an area where—amidst cancelled pilots and detail-light plans for managing offenders’ risk—we find some cause for concern. We look forward to exploring that further in Committee. In particular, I look forward to examining in more depth the Government’s intentions on provision in the community for female offenders. The Opposition also strongly support the provisions in schedule 13 that seek to facilitate greater diversity in judicial appointments.

There is much that we agree with in the Bill and we will not vote against it on Second Reading.

21:49

[The Minister for Policing and Criminal Justice (Damian Green)]

I am grateful to everyone who has contributed to what has been a wide-ranging debate—irrespective of whether they did so at normal speed or, as in the case of the hon. Member for Birmingham, Yardley (John Hemming), at turbo-charge speed.

As my right hon. Friend the Home Secretary noted when she opened the debate, we need to do more to protect the public against serious and organised crime, and to improve further the efficiency responsiveness and transparency of the justice system. I welcome the broad support of a number of provisions from all sides, including from the hon. Member for Darlington (Jenny Chapman) who wound up the debate for the Opposition.

In establishing the National Crime Agency as a key objective of the Bill, it also brings forward, as we have heard today, many other noteworthy reforms. The package of court and justice reforms introduced in part 2 will deliver a swifter, more open and effective courts and tribunal system while improving judicial diversity and establishing a new tool to tackle economic crime—namely, deferred prosecution agreements. For that work, the House should pay tribute to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier). In many instances, these reforms will have a real and meaningful impact on those who use the court and justice system. For example, the establishment of a single family court will make the court system more accessible and less confusing for families who come into contact with it.

We are also determined to improve the public’s confidence and understanding of the criminal justice system. That is why this Bill introduces measures that require courts to include a punitive element in every community order for the first time. This will help bring community orders into line with other sentences such as fines and custody where it is clear that punishment is a key purpose of the sentence.

Furthermore, the introduction of court broadcasting, initially in the Court of Appeal, will help to demystify the justice system. Justice must be done and seen to be done if it is to command full public confidence.

[Sir Alan Beith]

Can the Minister give us any clue as to how we know what constitutes a punitive element in a community sentence?

[Damian Green]

I think those receiving the sentence will know. I cannot set out the details, because that is for the courts. Anything that requires the deprivation of liberty at a particular time or the performance of a task at a certain time can contribute to the punitive element of a sentence.

Let me move on to deal with some of the detailed points raised during the course of the debate.

[Mr Straw]

rose—

[Damian Green]

I suspect I will not be able to deal with them all—in fact, I certainly will not be able to do so, but I give way to the right hon. Gentleman.

[Mr Straw]

Will the right hon. Gentleman explain his train of thought when he says that demystifying what happens in the courts will automatically lead to a rise of public confidence in them?

[Damian Green]

As a former Lord Chancellor, as well as a former Home Secretary, the right hon. Gentleman will surely wish to join me in paying tribute to the judiciary, who will be the first people to be televised giving verdicts in the high courts. I am sure he will agree that that will help to explain the decisions they come to.

Returning to detailed points in the debate, I am delighted that my hon. Friend the Member for Gainsborough (Mr Leigh) congratulated the Government on clause 38. Having been a Member of the House for 15 years, I have to say that this is the first time I have ever heard him do so for any Government, and I look forward to many more such occasions in the coming months and years.

[Mr Leigh]

Don’t get too excited.

[Damian Green]

As my hon. Friend says, I should not get too excited.

The shadow Home Secretary asked how the NCA would work with police and crime commissioners. The PCCs have a national role in tackling the sort of serious and organised crime whose pernicious effects are felt in every community in every street in the UK. They will be key strategic partners for the NCA. Keith Bristow has already spoken with the newly elected commissioners as part of the central PCC briefing that the Home Secretary hosted in November. He and the wider NCA will obviously continue to engage with them, including through the Association of Police and Crime Commissioners.

The right hon. Lady raised the issue of the tasking element, as did many other Members. She asked whether direct tasking by the NCA director general would cut across the authority of police and crime commissioners. I do not believe that there will be any conflict. Fighting serious and organised crime is a shared concern of the NCA and the PCCs. Tasking by the NCA will be used to fight the kind of cross-boundary serious and organised crime that is more difficult for individual forces to tackle, and to which PCCs must already have regard under the strategy policing requirement to which they, as well as just chief constables, must sign up.

The right hon. Lady also asked about the framework document. It will be a joint statement of intent by the Home Secretary and the director general of the NCA, setting out how they will work together. The final NCA framework document cannot be produced until after Royal Assent; it will be published and laid before Parliament in due course.

There was much discussion of the self-defence clause. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) referred to it, as did my hon. Friend the Member for North West Cambridgeshire (Mr Vara) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd). We are not changing the fundamental premise that people can use only force that is reasonable in the circumstances as they believe them to be. What we are saying is that when a person is attacked by an intruder in his or her home, in the light of all the terror that that brings—greater, probably, than the emotions that would be aroused in someone defending commercial premises—it may be reasonable for that person to use a greater degree of force than is permitted by the current law. Householders should not be treated as criminals if they have used force that was reasonable in the circumstances as they believed them to be, even if that force turns out to be disproportionate when viewed in the cold light of day.

My hon. Friend the Member for Dewsbury (Simon Reevell) asked why the provision was limited to householders. It is attacks by intruders in the home that cause the greatest public concern. A home is supposed to be a haven, a refuge, a place where people have every right to feel safe, and that is why we believe that householders deserve special protection.

I am grateful to many Members, including the right hon. Member for Wythenshawe and Sale East and the hon. Member for Stretford and Urmston (Kate Green), for their support for the restorative justice proposals. A number of interesting details emerged, which I shall certainly consider. I share the desire of the right hon. Gentleman and the hon. Lady—and, I think, of the wider House—to develop the idea of restorative justice so that it becomes much more important to the way in which we continue to cut crime and prevent reoffending. I know that it is one of the key elements that my right hon. Friend the Justice Secretary wants to introduce in order to continue our success in that regard.

The right hon. Members for Leicester East (Keith Vaz) and for Blackburn (Mr Straw), among others, mentioned family visit visas. The current family visit visa appeal right no longer serves its intended purpose. The appeal right for visitors is an anomaly: no other types of visit visa, such as business and tourist visas, attract the full right of appeal. People who are refused visit visas may reapply as many times as they like, and may provide further information in support of their applications. The expenditure on family visit visa appeals constitutes a disproportionate use of taxpayer funding for the benefit being sought. Removing the full right of appeal from family visitors will save £107 million over the 10 years following enactment.

Inevitably, questions were asked about the efficiency of the system. Of course the system can always be improved. In 2011, however, 79% of family visit visa applications were granted at the initial decision-making stage, 2% were granted as a result of an allowed appeal, and a further 2% were granted after entry clearance manager reviews following the receipt of appeals. That demonstrates that the majority of people are able to follow the application process, and are successful.

I join others in congratulating my hon. Friend the Member for Croydon Central (Gavin Barwell) on his successful campaign following the tragic incident of drug-driving and its effects in his constituency. He asked various questions. We aim to improve any devices that meet the requirements for testing at a time as near as possible to the commencement of the new offence, which is planned for 2014. I hope that that gives my hon. Friend some reassurance. My hon. Friend the Member for Castle Point (Rebecca Harris) asked about medically unfit drivers; I am happy to tell her that that specific issue will be the focus of a meeting tomorrow.

I look forward to exploring those and other issues in Committee, along with the Minister of State, Home Department, my hon. Friend the Member for Taunton Deane (Mr Browne), who is the Minister responsible for crime prevention. I believe that the Bill will greatly enhance the national response to serious and organised crime, while delivering a swifter, more transparent and more effective courts and tribunals system, and I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Crime and Courts Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Crime and Courts Bill [Lords]:

Committal

1. The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 14 February.

3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

4. Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on consideration and Third Reading.

Other proceedings

7. Any other proceedings on the Bill (including any proceedings on consideration of any message from the Lords) may be programmed.—(Damian Green.)

Question agreed to.

Crime and Courts Bill [Lords] (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Crime and Courts Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of—

(1) expenditure incurred by a Minister of the Crown or a government department by virtue of the Act,

(2) expenditure incurred in making payments to persons who select judges or who select selectors of judges, and

(3) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Damian Green.)

Question agreed to.

Crime and Courts Bill [Lords] (Ways and Means)

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Crime and Courts Bill [Lords], it is expedient to authorise—

(1) the imposition, on persons liable to pay sums adjudged to be paid by a conviction or treated as sums adjudged to be paid by a conviction, of liability to pay amounts in respect of costs of collecting sums of that kind,

(2) the charging of court fees by virtue of the Act,

(3) charging by the National Crime Agency for the provision of services or facilities,

(4) provision about functions in relation to regulation of bailiffs and enforcement agents, and

(5) the payment of sums into the Consolidated Fund.—(Damian Green.)

Question agreed to.

Business without Debate

Monday 14th January 2013 Commons Chamber

Delegated Legislation

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Charging Orders

That the draft Charging Orders (Orders for Sale: Financial Thresholds) Regulations 2012, which were laid before this House on 26 November 2012, be approved.—(Nicky Morgan.)

Question put.

The Speaker’s opinion as to the decision of the Question being challenged, the Division was deferred until Wednesday.

Finance and Services

Ordered,

That Mr Shailesh Vara be discharged from the Finance and Services Committee and Mr Greg Knight be added.—(Alan Campbell, on behalf of the Committee of Selection.)

Vascular Services (Wycombe Hospital)

Monday 14th January 2013 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Nicky Morgan.)

[Mr Speaker]

Before I call the hon. Member for Wycombe (Steve Baker) to present his case on behalf of his constituents, may I appeal to Members leaving the Chamber to do so quickly and quietly, affording the same courtesy to the hon. Member that they would wish to be extended to them in comparable circumstances?

22:01

[Steve Baker (Wycombe) (Con)]

I am most grateful to you for that, Mr Speaker. I am also grateful to my hon. Friend the Minister for being here at this hour to discuss vascular services in Wycombe hospital, as I know he has thought carefully about the subject. It is a subject that will be of interest to your constituents, Mr Speaker, so I am glad to see you in the Chair, and to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), a number of whose constituents campaign vigorously on the issue, so I am glad to see him here supporting this case. The nub of the issue is that we in Wycombe have been told repeatedly that it is in our interests for hospital services to be centralised away. There is today a clear momentum to centralise vascular services for the Thames Valley in Oxford, yet Wycombe enjoys better results and Oxford has been subject to a range of criticisms, as I shall set out.

We need to look at the historical context to understand why the opposition to what is happening is so vociferous. Wycombe hospital is in a position perhaps typical of a generation of district general hospitals: we lost our accident and emergency unit; we lost consultant-led maternity, retaining a midwife-led unit as a concession; we lost paediatrics; and in 2012 the emergency medical centre—the EMC—was downgraded to a minor injuries unit, repeating much of the local outcry about the loss of the accident and emergency unit. At each stage, campaigners expressed fears that the withdrawal of services would lead eventually to the closure of the hospital. At each stage, those fears were vigorously stoked by dissenting voices among the affected medical staff. At each stage, the NHS management no less vigorously denied that such an outcome could ever occur, and after each stage the NHS management went on to propose further service withdrawals. It is no wonder so many local people fear closure.

In Wycombe, we do have the Buckinghamshire units for cardiology and stroke, which treat two of the biggest killers, but, scandalously, the minor injuries unit recently failed to admit a lady who arrived with suspected heart trouble—the Minister will recall taking my question in the House on that occasion. It is now being suggested by some clinicians, specifically those within the vascular unit at Wycombe, that losing vascular services at the hospital could threaten those excellent services we have left.

I feel sure that the Minister will appreciate the excruciating sensitivity of this issue. The long, grinding decline of our hospital has sown anger, despair and cynicism, not least because the public have come to appreciate that NHS consultations seem to be exercises in manufacturing consent—or perhaps the appearance of consent—rather than providing democratic accountability and control.

The recent “Better Healthcare in Bucks” consultation on the downgrade of the EMC mentioned vascular services, supporting the view that vascular should remain in Wycombe until a review in 2014. We are now approaching that review and a series of leaked documents has shown two important points: first, vascular care in Wycombe is superior to that in Oxford; and, secondly, the transfer of vascular services to Oxford is essentially a done deal.

Let us consider how vascular services have changed, because I know that it has affected many of my hon. Friends and Opposition Members. Diseases of the arteries and veins used to be treated by surgery only, but problems are now reached via other blood vessels using techniques known as interventional radiology. Vascular surgeons and interventional radiologists support cardiology, cardiac surgery, stroke and other disciplines. The new vascular specialty was approved by Parliament in March 2012. Vascular is now listed as a specialty on the General Medical Council website, although the approved curriculum and assessment system was not available today. There is also a Vascular Society.

According to the authors of a report on the centralisation of vascular services in Oxford,

“the advent of separate specialty status for vascular surgery together with speciality commissioning plans for 2013 onwards…will reduce the number of hospitals providing vascular surgery to about 50 in England and Wales”

from 150, and

“commissioners will not purchase arterial interventions except from arterial centres.”

I think that is why the issue has affected so many of my colleagues.

[Eric Ollerenshaw (Lancaster and Fleetwood) (Con)]

I congratulate my hon. Friend on securing this important debate. In north Lancashire, the situation is similar. It is perhaps not the policy that is the problem but the implementation of it, because if it is implemented some of my constituents, particularly in rural areas, will face transport times of more than one and a half hours. The national target for improvement is just one hour, which is why, unfortunately, I have to support my local hospital, the Royal Lancaster infirmary, which has reached the point of considering taking the implementation of the policy to judicial review.

[Steve Baker]

My hon. Friend raises an important point about transport, which will be an issue for many of our constituents, not least because they will not have cars.

People in need of vascular care will include those with abdominal aortic aneurysms, a life-threatening weakness of the main artery that must be repaired, and those who have had strokes or mini-strokes—transient ischaemic attacks. After a stroke, drugs are administered immediately, but they need to be followed up with a procedure to clear the carotid artery, called a carotid endarterectomy or, mercifully, a CEA. Other people requiring care will include those with poor blood supply, including smokers and diabetics, who might endure serious complications that might even lead to amputation.

Wycombe hospital provides the full range of services. It is proposed to move them all to Oxford university hospitals on the basis that the present arrangements are “not sustainable”, but I have yet to see evidence that supports that assertion. Leaked documents suggest that Oxford provides worse outcomes and is struggling to be ready.

[Tim Farron (Westmorland and Lonsdale) (LD)]

I am extremely grateful to my hon. Friend for giving way and congratulate him on securing the debate. Further to the point raised by my hon. Friend the Member for Lancaster and Fleetwood (Eric Ollerenshaw), in the north-west the number of units will go down from four to three. Folks in Morecambe bay will no longer be able to go to Lancaster but will have to go to Carlisle, Blackburn or Preston. Does my hon. Friend the Member for Wycombe (Steve Baker) agree that the majority of vascular surgery these days is not elective but acute, following road traffic trauma and incidents such as coronary emergencies? We are talking not about elective surgery but about acute emergency provision, so it is vital that the services are close at hand.

[Steve Baker]

My hon. Friend is possibly inviting me to stray beyond my expertise, but perhaps the Minister can deal with that point. The concern in Wycombe is about elective treatment of aneurysms, and particularly the treatment that goes with stroke services. The key concern is that it is an excellent service that will be degraded if it is moved to Oxford, according to the clinical evidence.

I am grateful to Dr Annet Gamell, chief clinical officer of the Chiltern clinical commissioning group. She has given me a clear explanation of the position in Buckinghamshire, which is that things are waiting on the outcome of the review in 2014. Once a new theatre is open at Oxford, it is proposed that all complex elective vascular surgery will go there. It is planned that outpatient and diagnostic services will remain at Wycombe. CEA services would be subject to review in 2014, and I understand from Dr Gammell that the group would support moving CEAs to Oxford only if results indicated that patients would benefit from it. The Chiltern clinical commissioning group would take into account the impact of such moves on other services. Dr Gammell points out that if it is agreed to transfer CEAs to Oxford, there would be another local consultation, but on the basis of recent experience it is not clear to me what end that consultation would serve. The decision would have been made and it is clear that there is vast momentum to take services in that direction, despite the clinical evidence.

The key performance indicators for the south central cardio-vascular network show that in the first two quarters of the 2012-13 reporting year, Wycombe performed 17 aneurysm repairs and Oxford 16. Wycombe carried out 31 carotid endarterectomies to Oxford’s 47. Almost half of patient records at Oxford did not provide the dates of patients’ symptoms. Eighty per cent. of CEA patients at Wycombe received the procedure within two weeks of referral. At Oxford, the figure was just 23%, although patients seem to have received their treatment within 48 hours of symptoms. At Wycombe, 58% of patients were treated within 48 hours. Oxford achieved a ratio of total vascular interventions to amputations of 4.55:1, whereas at Wycombe the ratio in the period was 8:1, which shows a considerably greater degree of success in maintaining people’s limbs in very difficult circumstances.

The clear clinical evidence in that period is that Wycombe outperforms Oxford, and it does so with fewer clinical staff. All this is not mentioned in the “Oxford University Hospitals Review of Phase 1 of the Centralisation of Vascular services”, which has been sent to me under cover of a letter dated 12 August from the chief executive of NHS Berkshire. It was among a number of documents leaked to me. The report describes the resignation of a vascular consultant, Mr Peter Rutter, following significant difficulties associated with the move from Wexham Park to Oxford. Those difficulties including antiquated theatre instruments, poor quality theatre lighting and patient safety issues.

Mr Rutter observed:

“Vascular surgery is not very important in Oxford and would take 5 years to bring up to standard.”

He also said that vascular had no champion at Oxford, which is confirmed in other documents. Other remarks in the review include, for example,

“Many outlying district general hospitals have better endovascular facilities”,

“Oxford is not a modern endovascular hospital”

and

“Oxford has no culture of multidisciplinary working”,

which is essential when vascular supports those other specialties. Furthermore,

“Little thought had been given to the effect on Interventional Radiology in DGHs”

and very worryingly, an

“Oxford senior surgeon threatened to make Bucks vascular surgeons redundant unless they toed the line.”

A comment in the review implies that Wycombe’s excellent interventional radiologists would join Oxford University Hospitals only if CEA and bypass surgery stayed at Wycombe, which has been rejected. Presumably, these valuable experts who make the excellent service possible will resign and go elsewhere.

In summarising, the review explains that the impression had been given that OUH had not properly thought through the implications of centralisation. In discussing theatre upgrades, it concludes that

“there remain concerns about the quality of lighting, ventilation, anaesthetic facilities and sterility.”

I am only a humble aerospace and software engineer, but it seems to me that these are fairly basic concerns. Despite all this, the review clearly states:

“It will not be possible for carotid surgery to remain in Wycombe as CE and CAS will not be commissioned from Wycombe beyond 2013.”

Surely this is a matter for the commissioners.

The reviewers are clear that it is not viable for Wycombe to keep carotid surgery and bypass, but they do not state the evidence for their assertion beyond the new status of vascular as its own specialty. Before making recommendations, the review says:

“OUH practices Vascular Surgery more like a DGH than an important Teaching Hospital. Several of the surrounding DGHs, currently being centralised into Oxford, probably provide a better endovascular service.

Vascular surgery at OUH seems to be safe but has not developed in the way that it has in other hospitals in the United Kingdom. It seems to be positioned about ten to fifteen years behind the best.”

Notwithstanding the evidence of superior performance at Wycombe and shortcomings at Oxford, the review insists that vascular services must transfer, ultimately on the basis that it is inevitable that vascular services will be co-located alongside Oxford’s major trauma unit. That is a blatant rejection of the principle that is constantly used to justify centralising services away: clear clinical evidence. All the time that Wycombe provides better care and the team can provide it sustainably, in its opinion, and while local commissioners are prepared to buy it, why surrender to Oxford’s desire to be the Thames valley super-hospital, whatever the cost to patients?

Any responsible Member would admit that the trend in health care is towards specialisation. When my hon. Friend the Member for Bracknell (Dr Lee) was describing his Thames valley super-hospital proposal in Marlow, he said that any politician who claimed that they could restore A and E to a district general hospital would be a liar. I am grateful that I have not fallen into that trap, but it illustrates a point. Politicians are accountable to their electorates and businesmen are accountable to their customers, but managers and clinicians in the NHS who follow rules and guidelines seem to account seriously only to one another and, significantly, to do so on the basis of who carries the greatest authority through prestige.

In the midst of all that, senior NHS executives keep circulating. Stewart George and Fred Hucker—irrespective of their individual merits—who chaired the Bucks and Oxfordshire PCTs, became joint chairmen of the cluster. Mr George is now moving to the CCG, and Mr Hucker to Buckinghamshire hospitals trust. A new era of openness, accountability and genuine public involvement seems unlikely, and continuity seems a dreary inevitability, but all that ought not to be.

Vascular services in the Thames valley appear to be not so much sleepwalking into disaster as positively driving towards it. Vascular services in Wycombe are not some ditch and gatepost operation to be salvaged by the great Oxford University hospitals, as Wycombe outperforms them with a smaller team. In this regard, it is the John Radcliffe that needs saving.

Let me ask the Minister some specific questions. Is the Chiltern CCG able to insist that it will purchase vascular surgery from the Bucks health care trust at Wycombe despite national guidelines? What are the roles and authority of the NHS Commissioning Board, the local health and wellbeing board and the south central vascular network? Crucially, has the elevation of vascular surgery out of general surgery and into a specialisation of its own led to such things as turf wars, demarcation disputes and office politics? What formal influence are locally elected representatives—councillors and MPs—supposed to have?

Wycombe has had its own hospital since 1875. The current hospital was not founded by the NHS; it was built in 1923 with donations from local people, which were mostly given in pennies, as a memorial to the men we lost in the great war. The public are therefore right to be incandescent with rage at changes that appear to be driven by remote sectional interests, not local patient care.

Recently, my right hon. Friend the Secretary of State said:

“I need to say this to all managers: you will be held responsible for the care in your establishments. You wouldn’t expect to keep your job if you lost control of your finances. Well don’t expect to keep it if you lose control of your care.”

What is needed is real accountability. Let us get health under the control of the people who pay for it and start by keeping vascular at Wycombe for all the time that that remains in patients’ best interests.

22:14

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

I congratulate my hon. Friend the Member for Wycombe (Steve Baker) on securing the debate and raising issues that are pertinent not only to his constituents but to those of my right hon. and learned Friend the Attorney-General, who has been sitting next to me on the Front Bench listening to the debate and who shares a number of my hon. Friend’s concerns.

Before I discuss the substantive points about Wycombe, I should address my hon. Friend’s point about failing management in the NHS. He is right that there is a tendency to recycle failing managers in the NHS, and I am sure that the House will return to that point when my right hon. Friend the Secretary of State responds to the concerns raised in the Mid Staffordshire inquiry, following the Department’s receipt of the report.

It is worth paying tribute to the dedicated health care workers in Wycombe and the surrounding areas of Buckinghamshire, because my hon. Friend has a number of excellent clinicians. He highlighted several local successes in delivering high-quality care through vascular surgery, and I know that there are good outcomes locally in specialties such as carotid endarterectomy. He has many excellent doctors and nurses and other front-line health care professionals, and also some very good managers, who have the best interests of their patients at heart and deliver high-quality health care outcomes for local patients on a daily basis, 365 days a year.

My hon. Friend rightly highlighted some local concerns about the ongoing loss of services at Wycombe hospital, and it is worth reiterating some of his words. He said that the hospital had lost A and E, consultant-led maternity—retaining a midwifery-led unit as a concession —and paediatrics, and this year the emergency medical centre was downgraded to a minor injuries unit, resulting in a repeat of much of the local outcry at the loss of A and E, and now he has highlighted eloquently the concerns over the potential loss of some of the vascular services at the hospital.

It is worth pointing out that I was reassured today before coming to the debate by local health care commissioners in the Wycombe area that there is a strong future for Wycombe hospital. There is no threat of the hospital being downgraded to the point of closure. Commissioners today reassured me—and I hope that this reassures my hon. Friend—that in many areas Wycombe provides a very good site further to develop health care services the better to meet the needs of the local population. It is an excellent satellite site, combined with Stoke Mandeville, for providing high-quality, close-to-home health care. From discussions that I have had, I believe that there may be the possibility of improving further some of the cardiac care that is offered.

I come specifically to the issues that my hon. Friend raised about vascular services, which are particularly important in Wycombe, which has a large Asian population, among whom, as we all know, there is a higher rate of cardiovascular disease. It has a higher rate of diabetes and many cardiovascular illnesses. My hon. Friend highlighted eloquently the number of local vascular services provided, and particularly referred to amputation services. We know that one of the complications of vascular disease and diabetes is the higher rates of amputation among some patients. It is quite right that he wants to make sure that high-quality services are provided locally to meet the established need for patients who require vascular services, and that those patients have a holistic service that looks not just at their immediate medical needs but provides high-quality surgical care.

We know that as lifestyles, society and medicine change, the NHS must continually adapt. The NHS has always had to respond to patients’ changing expectations and to advances in technology. When we do change and reconfigure services, it must be about modernising facilities and improving the delivery of high-quality patient care. In that context, it is also important that while we have to recognise that some services are better provided in larger centres of care— for example, the John Radcliffe centre, which can offer super-specialist services—where the clinical outcomes for patients are better, we must also provide high-quality local services, particularly for older people. We know that the majority of vascular patients often fall into an older age demographic, and it is important that when there is any service reconfiguration, those day-to-day outpatient clinics for vascular patients are maintained locally. I am reassured that in the potential reconfiguration, bread-and-butter outpatient clinics and continuity of care for vascular patients will be maintained.

The Government are also clear that the reconfiguration of front-line health services is a matter for the local NHS. Services should be tailored to meet the needs of local people, and the four tests laid down in 2010 by the previous Secretary of State for Health, my right hon. Friend the Member for South Cambridgeshire (Mr Lansley), require that local reconfiguration plans demonstrate support from GP commissioners, strengthened public and patient engagement, clarity on the clinical evidence base and support for patient choice. If my hon. Friend is worried that these tests have not been met in the local reconfiguration, he has the opportunity directly to challenge them or to ask the local health scrutiny committee to refer them to the Secretary of State for review.

[Tim Farron]

The Minister rightly says that the NHS reforms allow local councillors to vote to refer such matters to Ministers. In my area of Morecambe bay, that opportunity comes on 22 January. Will he assure councillors that Ministers will take such referrals very seriously and look into them with great rigour?

[Dr Poulter]

Yes. I assure my hon. Friend that when a referral is made by a local overview and scrutiny panel the Secretary of State will look at it and decide whether to refer it to the independent reconfiguration panel. That is often the decision that is made in these cases, but it lies initially with the Secretary of State, who will then have to consider whether to refer it. I am happy to write to my hon. Friend further to outline these steps if that would be helpful.

It is worth highlighting the national parameters that are being set for the delivery of good vascular surgery by the NHS Commissioning Board, which takes over full responsibility for commissioning from April this year. The board published a draft national service specification for vascular surgery for consultation. The consultation commenced in December 2012 and will conclude on 25 January 2013. It identifies the service model, work force and infrastructure required of a vascular centre. It says:

“There are two service models emerging which enable sustainable delivery of the required infrastructure, patient volumes, and improved clinical outcomes. Both models are based on the concept of a network of providers working together to deliver comprehensive patient care pathways centralising where necessary and continuing to provide some services in local settings…One provider network model has only two levels of care: all elective and emergency arterial vascular care centralised in a single centre with outpatient assessment, diagnostics and vascular consultations undertaken in the centre and local hospitals.

The alternative network model has three levels of care: all elective and emergency arterial care provided in a single centre linked to some neighbouring hospitals which would provide non arterial vascular care and with outpatient assessment, diagnostics and vascular consultations undertaken in these and other local hospitals. All Trusts that provide a vascular service must belong to a vascular provider network.”

In essence, this is about making sure that we deliver high-quality vascular care. There are two or three circumstances in which someone would require vascular care. First, there is emergency care—for example, when there is a road traffic accident, or when someone has a leaking aortic aneurysm, which is a very severe and potentially life-threatening emergency. We know from medical data that such service provided in an emergency is much better provided in a specialist centre—an acute setting such as the John Radcliffe, which would be the hub and the central focus. There is also good evidence that trauma care in any setting, including the requirement for neurological specialists potentially to be involved, is better served in a specialist trauma centre. A specialist centre provides better care in emergencies.

At the same time, it is clear from those models that there can also be a strong role for other hospitals as satellites of the central hub at the John Radcliffe. My hon. Friend clearly made the case for the high-quality outcomes at Wycombe hospital for carotid endarterectomies and other vascular services. I would suggest that there is a role for challenging local commissioners if they wished to remove some elective procedures from Wycombe when there is a case that they can still be delivered in a high-quality manner and to a good standard for patients.

[Steve Baker]

I apologise for intervening on the Minister when there is so little time left, but I can see the campaigners leaping up and down and saying that the clinical evidence in this case is that Wycombe is doing better than Oxford on aneuryism repair.

[Dr Poulter]

The evidence on the outcomes of patients from many trials does stack up over a period of time. Generally speaking, all surgeons need to do a minimum number of procedures in order to maintain regular competency, and to maintain continually high and good outcomes for patients when carrying out aneuryism repair. That is the reason for the service reconfiguration. The argument can be made, as my hon. Friend has done, that Wycombe should continue to provide those services, but we know that the national data and best evidence point to the fact that the services are best provided at specialist centres.

However, there is a good case for my hon. Friend to take forward to the local commissioners about ensuring that more of those elective procedures and elective amputations remain local, and I am sure that he will do that. I am sure that he will also want to talk to his local health scrutiny committee to ensure that it refers cases to the Secretary of State for review, if required. I thank him once again for raising the matter in the debate.

Question put and agreed to.

22:30

House adjourned.

Petitions

Monday 14th January 2013 Petitions

Monday 14 January 2013

Live animal exports

Monday 14th January 2013 Petitions

The Petition of the people of Thanet,

Declares that the Petitioners believe that the export of live animals is an outdated and unnecessary practice; that over the last year, the UK has seen the number of animals being exported from our shores rise significantly; that the live exports trade has moved to the Port of Ramsgate and that the Petitioners believe that the majority of residents are vehemently opposed to the practice given the undue stress caused to the animals through long periods of travel.

The Petitioners therefore request that the House of Commons urges the Government to bring a halt to the export of live animals from the UK, ensure that animals are slaughtered as close to point of origin as practicable, and reduce the number of hours an animal is allowed to travel to a maximum of eight.

And the Petitioners remain, etc.—[Presented by Laura Sandys, Official Report, 12 December 2012; Vol. 555, c. 417 .]

[P001148]

The Petition of residents of Truro and Falmouth,

Declares that the Petitioners believe that the export of live animals is an outdated and unnecessary practice; that over the last year, the UK has seen the number of animals being exported from our shores rise significantly; further that the live exports trade has moved to the Port of Ramsgate and that the Petitioners believe that the majority of residents are vehemently opposed to the practice given the undue stress caused to the animals through long periods of travel.

The Petitioners therefore request that the House of Commons urges the Government to bring a halt to the export of live animals from the UK, ensure that animals are slaughtered as close to point of origin as practicable, and reduce the number of hours an animal is allowed to travel to a maximum of eight.

And the Petitioners remain, etc.—[Presented by Sarah Newton, Official Report, 12 December 2012; Vol. 555, c. 418 .]

[P001150]

Observations from the Secretary of State for Environment, Food and Rural Affairs:

The Government would prefer to see the export of meat or germ plasm rather than livestock, and that animals were slaughtered as close as practical to their point of production. But the export of livestock for slaughter within the EU is a legal trade.

To ban the trade, either directly or by indirect means, would be illegal and would undermine the principle of the free movement of goods enshrined in the Treaty on the Functioning of the European Union. Nevertheless, if livestock is transported for slaughter, consignments must meet the full requirements of the EU legislation on the protection of animals during transport (Council Regulation (EC) 1/2005).

This legal position on the trade in livestock has been confirmed by a number of rulings in the High Court and the European Court of Justice in the 1990s. The High Court judgment of Lord Justice Simon Brown in the 1995 joined cases of R v Dover Harbour Board (ex parte Gilder), R v Associated British Ports ex parte Plymouth City Council and the European Court of Justice case C - 1/96 R v MAFF ex parte CIWF are both good examples of these rulings.

Treatment for Gastroparesis

Monday 14th January 2013 Petitions

The Humble Petition of residents of North East Somerset,

Sheweth,

That the Petitioners are concerned about the wellbeing of Alison Jukes, who was diagnosed with Gastroparesis in January 2012; further that the Petitioners believe that a possible treatment exists for this condition—gastric electrical stimulation—and a number of Gastroparesis sufferers in Britain have successfully received it; further that Alison has been denied the operation and her appeal has also been turned down; further that the Petitioners believe without this operation, Alison will be fed via a tube every day for the rest of her life and the Petitioners believe that eligibility for this treatment should not vary by location.

Wherefore your Petitioners pray that your Honourable House urges the Department of Health to look into the consistency of the availability of gastric electrical stimulation across different Primary Care Trusts.

And your Petitioners, as in duty bound, will ever pray, &c.—[Presented by Jacob Rees-Mogg, Official Report, 19 November 2012; Vol. 553, c. 413 .]

[P001132]

Observations from the Secretary of State for Health, received 11 January 2013:

The Government are sorry to hear that Mrs Jukes has gastroparesis and realises what an important issue the availability of effective treatments is for her, her friends and family.

Any funding decisions in the absence of positive National Institute for Health and Clinical Excellence (NICE) technology appraisal guidance are for NHS organisations to make based on an assessment of the available evidence and on the individual patient’s clinical circumstances.

The NHS Constitution states that patients have the right to expect local decisions on the funding of drugs and treatments

“to be made rationally following a proper consideration of the evidence”.

If the local NHS organisation decides not to fund a particular treatment then it should explain that decision.

To underpin this right, the Department of Health has issued a set of core principles to inform the way in which NHS organisations make decisions about funding drugs and treatments. NHS organisations are required to have in place clear and transparent arrangements for local decision-making on funding of treatments and for considering exceptional funding requests. In addition, the Department has published good practice guidance about the processes they should have in place to make decisions about funding drugs and handling exceptional cases. The guidance can be accessed on the National Prescribing Centre’s legacy website at: www.npc.co.uk.

NICE is the independent organisation responsible for providing authoritative, evidence-based guidance to the NHS on the most effective ways to prevent, diagnose and treat disease and ill health, reducing inequalities and variation.

NICE issued interventional procedures guidance on the use of gastroelectrical stimulation for gastroparesis in December 2004, which stated that the evidence on the safety and efficacy of the procedure did not appear adequate to support its use without special arrangements for consent and for audit or research. NICE reviewed the need to update the guidance in 2009 and concluded that it did not need to be updated at that time, however NICE will consider any new evidence submitted to it on the procedure. Further information is available at: http://guidance.nice.org.uk/IPG103.

NICE’s interventional procedures guidance assesses the efficacy and safety of interventional procedures, with the aim of protecting patients and helping clinicians, healthcare organisations and the NHS to introduce procedures appropriately.

Car park charges (Scunthorpe)

Monday 14th January 2013 Petitions

The Petition of residents of Scunthorpe and Ashby,

Declares that the Petitioners support the call for shoppers, retailers and businesses across North Lincolnshire to be treated equally and fairly.

The Petitioners therefore request that the House of Commons urge the Government to provide 2 hours free car parking across all car parks in Scunthorpe and Ashby.

And the Petitioners remain, etc.—[Presented by Nic Dakin, Official Report, 12 November 2012; Vol. 553, c. 145 .]

[P001130]

Observations from the Secretary of State for Communities and Local Government:

Although Central Government has a role in parking legislation and policy, local councils are ultimately responsible for how parking is managed in their areas. Councils have a key role in promoting economic development, supporting local economic growth and local jobs. Making sure that car parking charges are reasonable is an important and practical way in which councils can help support their local high streets and wider local economy; the National Planning Policy Framework asks local councils to improve the quality of parking in town centres.

In January 2011 we removed the previous Administration’s requirement for maximum levels of parking provision associated with new development which had limited the growth of town centres. We changed parking policy from one which inhibited competition between council areas to one that said parking charges should not undermine the vitality of town centres. We withdrew guidance that encouraged councils to set parking fees to discourage the use of cars and set out clearly in planning policy that parking enforcement should be proportionate.

The National Planning Policy Framework in general sets a far more positive approach to enabling sustainable development through the planning system, including making clear that local councils should plan proactively to meet the development needs of business. It requires that new town centre uses are guided towards existing town centres out of preference and that in exercising their planning functions local councils should work closely with the business community to understand their changing needs and identify and address barriers to investment.

As pledged in our response to the Mary Portas Review, we are also taking steps to increase local transparency and accountability on the setting of municipal parking policies. Accordingly, a revised version of the “Code of Recommended Practice for Local Authorities on Data Transparency”, published on 25 October, proposes that local authorities should routinely publish in an open format: revenue from off-street parking charges; revenue from on-street parking charges; the number of off-street parking places; the number of on-street parking places; the revenue from parking fines; and the number of free parking spaces available.

Welfare benefit reforms

Monday 14th January 2013 Petitions

The Humble Petition of Mr Adrian Paul Miles of Wednesbury, West Midlands,

Declares that this Petition is a plea for our Government to reconsider the impact and implications of the Welfare Reform Act, as well as consider revising the Work Capability Assessment, as currently administered by ATOS Health Care, on behalf of the Department of Work and Pensions.

The Petitioner submits that the current Welfare Reform Act is fundamentally a very good idea, especially in its applaudably honourable and well-intentioned attempts at reducing this Country’s Benefit Expenditure, by getting people off Disability and Sickness Benefits and back into work.

However, as someone once said,

“The Road to Hell is Paved with Good Intentions”.

Of course, many good intentions, in many cases, can lead to many good results. This is undeniably true in the case of the Welfare Reform Act, which has begun, and is very clearly continuing to help people off Disability and Sickness Benefits and back into the workplace. Of course, this is all very commendable and beneficial to our Society. However, the Petitioner is also compelled to submit that our Government, through the work of the Department of Work and Pensions and, in turn, through the delegated, contracted and sub-contracted work of ATOS Health Care, are also taking a significantly large minority of British Citizens on a rollercoaster nightmare of financial worry and distress which, in turn, significantly worsens their health.

What the Petitioner finds most alarming, is that tens of thousands, if not potentially hundreds of thousands of Mentally Ill, Sick and Disabled Benefit Claimants are being unfairly declared “Fit for Work”, when in fact they are clearly evidenced by both themselves and their own Doctors and/or their Psychiatrists and Medical Specialists as being “Unfit for Work”.

If this was a matter simply of a relatively low percentage of individuals being incorrectly assessed by sufficiently qualified and experienced Medical Professionals and being given a Work Capability Assessment score of, for example, say 10, instead of a more accurate and fair 15 points or so, then the Petitioner would not be submitting this Parliamentary Petition to this House.

Sadly, the undeniable reality is that numerous Benefit Claimants are being given zero or significantly low points by their ATOS Appointed Assessors and, upon Appeal, many of them are then given significantly more points. Furthermore, many of these Benefit Claimants are then found to be “Unfit for Work”, not just from the date of their Tribunals, but from the date of their initial Medical Assessment. If this was the case in a small percentage of circumstances, it may be reasonable to suggest it was simply a statistical blip. However, official statistics to date clearly evidence that the Work Capability Assessment is fundamentally flawed. This is particularly evident when it comes to Assessing Mental Health issues, or short, medium or long-term Variable Health Conditions, be they Mental or Physical.

Many of the Assessors are also very clearly insufficiently qualified or sufficiently experienced to make accurate and fair Assessments of many of the individual Benefit Claimants.

Therefore, with all due Honour and Respect, Your Humble Petitioner Prays, Pleads and Requests, that the House of Commons urges the Government to, as soon as practicably possible, LORD willing-

I.

Revise the current Welfare Reforms Legislation and the Department of Work and Pensions’ management structure and ethos to ensure that both accuracy and fairness are paramount in the Policies and Decision Making Processes of both ATOS Healthcare and the Department of Work and Pensions;

II.

Make consideration of, and reference to, Claimants’ Doctors’ and Psychiatrists’ Medical Records compulsory prior to and during Medical Assessments;

III.

That all staff employed, contracted or sub-contracted towards this purpose are sufficiently qualified and experienced, with Doctors and other experts or specialists used when necessary or appropriate;

IV.

The Appeals process is apparently currently taking between approximately five or six months to one year, thereby causing serious anxiety, as well as putting considerable stress, as well as considerable financial strain on Benefit Claimants and their families and friends. This suffering is, of course, particularly acute given that we are currently entering a cold winter period, where Claimants’ fuel and utility bills are likely to be significantly higher than usual. Please, therefore, kindly reduce this waiting period as much as possible;

V.

In addition, the Petitioner also requests that Government Legislation and Department of Work and Pensions Policy is put in place to provide reasonable financial compensation to all those who are later evidenced as “Unfit for Work”, having been previously unfairly declared “Fit for Work”. In particular, the Petitioner requests that further compensation should be provided by way of apology for those who were given either zero or very low points prior to their successful Appeal Tribunal Decision.

Your Petitioner remains Your Fellow-Citizen and Fellow-Servant for the Common Good of Our Country.—[Presented by Valerie Vaz, Official Report, 19 December 2012; Vol. 555, c. 9P .]

[P001152]

Observations from the Secretary of State for Work and Pensions, received 11 January 2013:

Entitlement to Employment and Support Allowance (ESA) is based on an individual’s functional ability rather than the condition itself. Anyone claiming ESA will undergo the Work Capability Assessment (WCA). The WCA was introduced to fairly and accurately assess entitlement to benefit. It was developed in consultation with medical and other experts alongside representative groups.

Unlike previous assessments, the Welfare Reform Act 2007 requires the Department to independently review the WCA for the first five years after its introduction. The first three Independent Reviews were carried out by Professor Malcolm Harrington, a highly respected Occupational Physician with the latest report published on 20 November 2012. Throughout the reviews Professor Harrington has reported that positive progress has been made, but in his latest report said there is still more to be done. We agree with Professor Harrington and will continue to work with stakeholders to ensure the WCA is as fair and effective as it can be.

A decision on entitlement to benefits is made by a Department for Work and Pensions (DWP) decision-maker, it is based on all the evidence available including that provided by the claimant themselves and from advice from an Atos healthcare professional (HCP). Claimants are encouraged to provide all evidence that will be relevant to their case, including medical evidence supplied by their GP or other medical professional, at the outset of the claim.

As part of the third independent review Professor Harrington recommended that

“Decision Makers should actively consider the need to seek further documentary evidence in every claimant’s case. The final decision must be justified if this is not sought”

The Government agreed to

“Provisionally accept the recommendation, subject to the caveat that we must first work to ensure it can be implemented in a cost effective fashion before taking a final decision” .

We are currently progressing this recommendation.

All HCP’s are registered with a professional body such as the General Medical Council or the Nursing and Midwifery Council and must have at least three years post-qualification experience. In addition, all HCPs are fully trained in disability assessment including specific training in assessing individuals with Mental Health conditions. AH HCP’s must be approved by the Chief Medical Adviser on behalf of the Secretary of State. Once approved, all HCP’s are subject to ongoing quality checks through audit, which the Department validates.

The Government appreciate that appealing against a decision of being found “Fit for work” can be stressful for claimants, and that reducing the timescales for processing appeals would help to alleviate the stress and anxiety experienced. The DWP has therefore allocated additional staff resource in recent months to deal with appeals. We are also working closely with Atos Healthcare and Her Majesty’s Courts and Tribunal Service, to ensure that the overall process for handling appeals is dealt with more timeously and delays reduced.

It is suggested that when a Tribunal overturns a “Fit for Work” decision by a Decision Maker within the Department for Work and Pensions, the claimant should receive compensation. However, the reasons why Tribunals overturn DWP decisions are many and varied, and when a Tribunal overturns a DWP decision, this does not necessarily mean that the Decision Maker’s decision was wrong. For example, some decisions are overturned because new evidence is provided to the Tribunal which was not made available to DWP. We do not therefore agree with the suggestion contained in the petition, and do not intend to provide compensation in such cases.

Written Ministerial Statements

Monday 14th January 2013 Written Statements

Monday 14 January 2013

Parliamentary Written Question (Correction)

Monday 14th January 2013 Written Statements

[The Parliamentary Under-Secretary of State for Culture, Media and Sport (Mr Edward Vaizey)]

On Monday 7 January 2013, we answered the following PQ:

Mike Crockart (Edinburgh West): To ask the Secretary of State for Justice, how many complaints the Information Commissioner received from the Telephone Preference Service about live unsolicited direct marketing calls in the year to 31 October of (a) 2010, (b) 2011 and (c) 2012. [133362].

The Information Commissioner’s Office (ICO) has advised me that they are unable to provide information relating to the Telephone Preference Service (TPS), as their systems are unable to specifically identify referrals from the TPS—[Official Report, column 135W.]

The answer should have read:

The TPS provides the Information Commissioner’s Office (ICO) with details of all the complaints that the TPS has dealt with every month. The numbers of these complaints forwarded to the ICO were (a) 28,915 (b) 40,071 and (c) 70,235. The ICO uses this information to help identify serial offenders.

The TPS also forwards the ICO a list of complaints where an individual has received a repeat call from the same organisation, following an initial TPS intervention. The numbers of these complaints forwarded to the ICO were (a) 122) (b) 76 and (c) 25. The ICO treats these as individual complaints and the number is included in the ICO complaints figures.

Telecommunications Council

Monday 14th January 2013 Written Statements

[The Parliamentary Under-Secretary of State for Culture, Media and Sport (Mr Edward Vaizey)]

The Telecommunications Council was held in Brussels on 20 December 2012 under the Cypriot Presidency. The Deputy UK Permanent Representative, Shan Morgan, represented the UK at this Council.

There were only two substantive items on the agenda. The first item was a progress report from the presidency, followed by an orientation debate (an exchange of views steered by the questions from the presidency) on the proposal for a regulation of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market. (EM10977/12)

The UK intervention highlighted concerns with regard to the complexity of the proposal especially in respect of the current number of delegated and implementing Acts. The UK believed that there is a need to agree to clearer definitions of many of the terms used in the draft text. We also expressed concern regarding the reference to member state liability for electronic identification schemes. Finally, we suggested that while we support the aim of making cross-border transactions easier, we questioned whether harmonised assurance levels were the best way forward.

The majority of other member states, however, did favour minimum harmonised assurance levels for electronic identification. Sweden, the Netherlands, Denmark, Malta and France also suggested that reciprocal assurance levels would be appropriate. A number of delegations said that security levels should be set out in the proposed by the legislation. Many member states supported the UK’s concern about the misuse of delegated Acts.

The second substantive item was a full “tour de table” debate guided by two questions from the presidency on the priorities for the Digital Agenda for Europe. (DAE -EM9981/10)

Commissioner Kroes (Commissioner for the DAE) opened the debate by introducing the review of the DAE (published on 19 December). She highlighted that her number one priority for the DAE going forward were measures to increase investment in broadband across the EU 27. To facilitate this investment, the Commission will publish later this year a recommendation on costing and non-discrimination for broadband access and a proposal for a regulation to help cut the cost of civil works. She also asked member states to be more supportive of the connecting Europe facility proposal; especially the financial instruments which could help leverage increased private sector funding for broadband investment.

The presidency then invited member states to provide an assessment of the progress made on the current digital agenda priorities and to identify where future work on the digital single market should be focused.

The UK intervention highlighted the progress we have made nationally on broadband roll-out, especially in connection with funding for broadband roll-out in cities (super-connected cities programme). We also noted that any future European assistance on infrastructure should avoid a standardised approach. We then identified our three priorities for future work to maximise growth in the digital single market: removing barriers to investment in broadband investment; achieving an appropriate balance between consumer confidence and costs to business in the draft data protection package; and modernising the copyright framework to ensure it is fit for the digital age.

The Netherlands, Finland, Lithuania, Poland agreed with the UK that one of the priorities is to modernise the copyright framework. However, France urged caution on copyright reform, arguing that content creators must be properly remunerated. Poland, Germany and the Czech Republic highlighted the need for a framework for cloud computing. Slovenia and Estonia called for EU grants for broadband.

The presidency then provided progress reports on a proposal for a directive of the European Parliament and of the Council amending directive 2003/98/EC on the reuse of public sector information (PSI), a proposal for a directive on guidelines for trans-European telecommunications networks (EM 16006/11) and proposal for a regulation of the European Parliament and of the Council concerning the European Network and Information Security Agency (ENISA -EM 14358/10).

All of these items were noted by Council without intervention.

Any Other Business

There were only two items under AOB. We did not intervene on either of them. The first was a presentation by the Commission on a proposal for a directive of the European Parliament and the Council on the accessibility of public sector bodies’ websites, which was published on 4 December 2012.

Finally the Irish delegation informed the Council of their priorities for their forthcoming presidency.

Grand Committee

Monday 14th January 2013 Grand Committee

Monday, 14 January 2013.

15:30

Enterprise and Regulatory Reform Bill

Monday 14th January 2013 Grand Committee

Committee (7th Day)

Relevant documents: 9th and 10th Reports from the Delegated Powers Committee

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I remind the Committee that, in the event of a vote in the Chamber this afternoon, the Committee will adjourn for the duration of that vote. If it occurs while the Committee is debating the first two matters on the Marshalled List, we shall have to adjourn until the noble Baroness, Lady Stowell, returns from the Chamber, where she will be a Teller, which may take slightly more than 10 minutes. If the vote or votes occur at another time, the Committee will adjourn for 10 minutes from the sound of the Division Bell.

Clause 57 : Equality Act 2010: third party harassment of employees and applicants

Debate on whether Clause 57 should stand part of the Bill.

[Baroness Thornton]

My Lords, in opposing Clause 57 standing part of the Bill, I thank the noble Lords, Lord Lester and Lord Low, and my noble friend Lady Turner for supporting me in doing so. Clause 57 seeks to repeal Section 40 of the Equality Act 2010. Section 40 makes an employer liable for repeated harassment of their employees by a third party, including customers, clients and service users. The liability is triggered only if an employee has suffered such harassment on three or more occasions, the employer knew of the previous incidents and the employer has failed to take reasonable, practicable steps to prevent its recurring. The Government have stated that there is no real or perceived need for this protection but we believe that that simply is not true.

I am grateful to Thompsons Solicitors, who specialise in such matters, for their views and for a copy of the evidence that they submitted to the GEO as part of the consultation on this matter. What is clear from their considerable experience is that the majority of such claims are settled before a hearing happens, which is all to the good. Thompsons point out in that evidence:

“The government’s logic for repealing the provision is contradictory. On one hand the consultation states that the provision is a burden on business and on the other hand it states that it is only aware of one case in England and Wales where a claim relating to this provision was determined at an employment tribunal hearing”.

Given that the provision has been in place for all protected characteristics for less than two years, the Government are not in a position to make an assumption about the effectiveness of the provision within such a short period. Neither do we understand the logic that just because there are not many claims relating to this provision, it is somehow bad law.

It is not in the interests of society to remove from employers the responsibility for protecting workers against harassment from third parties. Workers should be entitled to carry out their duties and engage with third parties without fear of harassment. Do we really want workers to be exposed to harassment on the grounds of one of the protected characteristics without having the force of statutory protection from such harassment? For example, surely a nurse treating a patient should be entitled to expect protection from their employer against harassment by that patient on one of the protected grounds. Losing the provision would be inconsistent with the equality directive, as per EOC v the Secretary of State for Trade and Industry, in that the directive sets out associative protection. This would lead to further litigation. Can the Minister confirm that this is indeed the case? Even if it could be argued that the current legislation goes beyond the requirements of the directive, to amend the legislation by removing the provision would breach the non-regressive provisions of the directive—that is, the equality and recast equal treatment directives. Could the Minister please say whether this is true?

Is there a need for Section 40? We would argue that, yes, there is. A 2008 study by the University of Warwick for the NUT, of 2,575 teachers across 13 local authorities, found that one-third of the respondents experienced threats on at least a monthly basis. A survey for the NAS/UWT found a similar third of teachers suffered prejudice-based harassment and bullying. The EHRC has also found evidence of the prevalence of third-party harassment and its impact, demonstrating a widespread need for the law to provide protection. The people most likely to be affected by the abolition of this provision are some of the most vulnerable and poorly paid people, who are least able to defend themselves. For instance, a recent report on the treatment of care workers by clients comments:

“A survey of public sector social services staff found ethnic minority staff had experienced racist verbal abuse from service users; inappropriate questioning of their authority by users or relatives; users not wanting to be touched by them or asking to be dealt with by a White person (most frequently occurring in the user’s own home); and physical attacks perceived to be racially motivated. Inappropriate remarks from colleagues were also experienced”.

Thompsons say that they have advised and represented unions and union members in third-party harassment claims. With their kind permission, I will mention two such cases. The first involves three claimants who were constantly racially abused by patients in a mental health hospital where they worked as nurses. The perpetrators were two individuals on the same ward. The claimants requested to work shifts where they would not be in contact with the two individuals. The employer refused to change the claimants’ shifts or to take any action against the perpetrators. The claims were settled prior to a full hearing for £3,000 for each claimant, with an undertaking from the NHS trust concerned that action would be taken to protect the claimants from further acts of harassment.

Thompsons also report that their transport union clients are regularly asked to advise when members have been subject to racist abuse by passengers. The TUC certainly asserts that the introduction of Section 40 of the Equality Act has already led to a step change among employers, with actions undertaken to make it clear to service users that harassment of their staff will not be tolerated. Moreover, there may be hidden costs to business for not prioritising action against third-party harassment. Harassment can have a significant effect on the physical and mental health of the workforce, and be a major cause of work-related stress, affecting work performance and absence levels.

The proposed repeal of third-party harassment provisions has been introduced following the Government’s Red Tape Challenge. However, there is no publicly available evidence of concerns being raised about them during the first stage of the challenge. When the Government asked specifically for views on prohibited conduct, not one of the 214 of those who responded opposed the third-party harassment provisions, and a number specifically supported them. When the Government consulted specifically on third-party harassment, 71% of those who responded were opposed to repeal. Moreover, due to the familiarisation costs associated with the change in legislation and the minimal savings to business that are expected as a result of the repeal, the Government’s own impact assessment calculates that this repeal will be an additional burden to business, and not a saving. The assessment admits:

“Provisions for third party harassment may have had a wider impact on reducing discrimination in the workplace, outside of specific third party harassment claims, so the repeal may lead to more instances of workplace discrimination”.

At Second Reading in the House of Commons, Ministers gave a categorical assurance to my honourable friend Kate Green MP that this Bill would not be used to take forward proposals as featured in the Beecroft report on employment law, relating to employer liability for third-party harassment.

In conclusion, I put the following case to the Minister. A employs B. C interacts with B during the course of their employment. C harasses B on the basis of a protected characteristic—race, sex, sexual orientation or disability. A either fails to take adequate steps to minimise the risk of harassment—policy signage, risk assessment, preventive steps and so on—or fails to do so after being specifically alerted to C’s behaviour and prior to a repeat of it. B and C could be a nurse and a patient, a nurse and a family member, a receptionist and a customer, benefits agency staff and a claimant, a taxi dispatcher and a customer, a teacher and a parent, a warehouseman and a delivery driver, a guard on a train and a passenger, a council officer and a service user, a member of an MP’s staff and a constituent and so on.

A third-party harassment provision saves tribunal time and focuses employers’ minds. It also ultimately saves legal costs. Other legal avenues—direct race discrimination or sex discrimination claims, for example—are not available. Establishing that the employer is responsible for the harassment by allowing or failing to prevent a hostile environment at work is time-consuming and difficult. Good employers who are prepared to take reasonable steps to protect their staff from abuse have nothing to fear from the current provisions. Will the noble Baroness please explain to the Committee how such a matter might be resolved without this part of the legislation?

[Baroness Turner of Camden]

My Lords, I put my name to this question when I first read the Bill and I have recently had some contact with the TUC in regard to this particular clause.

As we have just heard, Clause 57 repeals Section 40 of the Equality Act, which makes an employer liable for repeated harassment of their employees by third parties, such as customers, clients or service users. The liability is triggered only if an employee has suffered such harassment on three or more occasions and the employer knew of the previous incidents and had failed to take reasonable practical steps to prevent it recurring. This is an important protection. I am opposed to the repeal unless the Government can justify it. I do not think that they can.

Trade unions have provided us with many examples of their members in publicly funded and service sector jobs, such as care work, teaching, and rail and bus transport. These people routinely suffer prejudice-based harassment in the course of their work. The introduction of Section 40 of the Equality Act led to a step change among some employers, with actions undertaken to make clear to service users that harassment of their staff would not be tolerated.

The one tribunal case of which I am aware was brought under Section 40 and demonstrates the importance and workability of this provision. A care worker in a residential care home suffered repeated sexual harassment by a resident. When she complained to her employer she was told just to be patient and to wait for the resident to stop touching her. The tribunal, however, held that the employer could have taken a number of reasonable steps to protect the care worker, such as ensuring that she was always accompanied by another member of staff, speaking to the resident’s social worker or psychiatrist for advice, or adjusting the rota to minimise contact with a particular individual offering this sexual harassment. That is an example where, quite properly, this provision in the legislation worked.

People should be able to work in an environment in which they are free from harassment, whether from fellow workers, managers, employers, customers, clients of their employers or others who come on to their employer’s premises. After all, the Government accept that it is necessary to provide protection from harassment in relation to fellow workers, managers or employers, so why should employees be unprotected from harassment by customers, clients of their employers or others who come on to their employer’s premises?

Furthermore, we should bear in mind that many public sector workers face harassment from members of the general public, often from those with grievances. For example, I remember going to an office where a lot of advice on social benefits and so on was provided. The staff there were quite concerned about the way in which members of the public with grievances would make threats against them. That was a government office and steps to protect the staff there were taken. Why should that not apply in the private sector? Why should we not ensure that people acting often on behalf of public issues, sometimes on legislation that we in Parliament have introduced, are protected from members of the public who feel that they have grievances? I hope that the Government can justify what they are doing but I do not think that they can. Therefore, I oppose inclusion of Clause 57 in the Bill.

15:45

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Baroness, Lady Thornton, and others who have put their names to this clause stand part debate today. It gives me an opportunity to make clear that Clause 57 does not diminish people’s right to equal treatment, or their access to justice, when they believe that they have encountered discrimination. The aim of this clause is to achieve these outcomes in a more straightforward and cost-effective way.

Clause 57 removes the specific but arbitrary “three strikes” test for employer liability. I should like to reassure the Committee that it does not remove protection for employees who have been harassed by third parties at work. The noble Baroness, Lady Thornton, asked me a specific question about whether the repeal is consistent with the equal treatment directive. I can confirm that it is.

The ruling of the court in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry in 2007 stated that,

“there is nothing explicit, or even arguably implicit”,

in the European equal treatment amendment directive,

“requiring a Member State to impose vicarious liability on an employer, or indeed liability for negligent failure to take steps”.

However, under the Equality Act 2010, employers are vicariously liable for the harassment of one employee by another. We maintain that the general harassment provisions in the Act can provide protection for an employee who has been harassed by any other third party. If the harassment causes the employee alarm or distress, a claim may be possible under the Protection from Harassment Act 1997. Where it is such that the employee feels there is no alternative to leaving the job, a claim for constructive dismissal can be brought. All this protection will remain, and that is why the third-party harassment provisions in Section 40(2) to (4) of the Equality Act are not needed.

Indeed, introduction of the “three strikes” test was itself unnecessary because a change in the legal definition of harassment in 2008, following a judicial review, allowed a wider range of claims. The then Government added the “three strikes” test to the harassment provisions in the Sex Discrimination Act 1975 specifically to address a set of facts referred to in the judgment. In our view this introduced an additional legal test that is both arbitrary and unnecessary.

The new definition of harassment following the change in the law in 2008 referred to unwanted conduct “related to” the sex of a person. That was instead of “on the grounds of”. This specific change extended the scope of protection against harassment to apply to wider circumstances than before, including potentially by a third party. This formulation now exists in the Equality Act 2010 and therefore applies to all the relevant protected characteristics, not just to sex.

The “three strikes” test was introduced to cover only the situation where, knowing that an employee is being repeatedly harassed at work, the employer does not take any reasonable steps to prevent that employee being harassed again. However, the extremely limited scope of these provisions is widely misunderstood and some businesses have also told us that they find it impossible to comply with the provisions in practice, no matter how they try. Most businesses recognise that they must not let their employees be harassed or ill treated by other employees or by third parties. Where this is not the case, the other legal protections that I have set out will continue to exist. However, they see the unique “three strikes” test as onerous, arbitrary and unfair. It expressly makes the employer liable for a specific number of actions—three—by a third party. In most cases the employer will have no control over the nature or number of events or the third parties concerned. The uncertainty over what exactly is required in order to avoid being caught out by the “three strikes” test makes it difficult for employers who want to comply and at the same time will not deter employers who may be less concerned about their obligations to their staff.

[Baroness Thornton]

I am wondering where the evidence for this is. I really need to know where this evidence is because certainly, as far as we can tell from the impact assessment and the evidence that I recalled in my speech, this did not seem to be the case. Perhaps the noble Baroness can write to me and list the cases to which she has referred because I certainly have not been able to find them.

[Baroness Stowell of Beeston]

The point in some of the cases that I shall come to is that people have been able to bring cases of third-party harassment without using the clauses to which we are referring. The response to the consultation by members of the industry has been clear that this part of the legislation is confusing and is very difficult for them to comply with. However, I will of course follow up in writing and provide further information to the noble Baroness.

As long as this test remains, employers can face claims from their employees of liability for third-party harassment on the basis of an arbitrary number of events, but taking no account of context. This approach cannot be right. Influencing employers’ behaviour is neither the primary role nor the intention of most provisions in discrimination law, and this is certainly not the reason why the Section 40 third-party harassment provisions exist. This confusing legislation is not the most effective way of achieving cultural change. Nor does it appear to have had any significant legal effect. As far as we can determine, only one case brought under these provisions has actually been heard by a tribunal in the four years since they were first introduced. The other examples of cases successfully alleging third-party harassment of which we are aware were brought before the “three strikes” test was introduced. That is the point that I made before; it is clear that it is possible for people to bring forward claims of third-party harassment because they have done so, even before this change in legislation was introduced. We believe that a better way to encourage employers to protect their employees from harassment at work, which as the noble Baroness, Lady Turner of Camden, said is an important matter, is through education and good practice guidance.

I turn to the question put to me by the noble Baroness, Lady Turner, who referred to the case of Blake and how protection for employees such as those in that case would be protected. Depending on the particular facts and circumstances of the case, it should be possible for a claim for third-party harassment to be brought under the general harassment provisions under Sections 26 and 40(1) of the Equality Act. Nothing in the Blake case would exclude it from that statement. Noble Lords will bear in mind that this is the only case known to have been decided by a tribunal during the lifetime of the “three strikes” third-party harassment provisions.

I commend Clause 57 to the Committee, but I will follow up on the points that the noble Baroness raised.

[Baroness Thornton]

I thank the Minister for her reply, but the Committee needs more evidence than she has been able to produce. She started by saying that this provision does not diminish people’s rights to equal treatment. Some of the experts, particularly those in the trade unions and the lawyers that I have quoted, believe that that is certainly not the case and that it does reduce people’s equal treatment. This piece of law has been in place for only two years. Does the Minister accept that, as Thompsons have said, its existence has prevented tribunal cases? That is rather an important matter.

I am not surprised by the answer that I received from the Minister, but it is not satisfactory, both in terms of equal treatment and because she has not made the case for this provision to be in the Bill or for Section 40 to be deleted from the Equality Act on the Government’s own terms of business effectiveness, enterprise or the Red Tape Challenge. The Minister has not refuted the facts that I gave about there being no majority in favour of getting rid of this provision; she managed to quote one case which, she said, caused confusion. So the Government have not made their case. Then you have to wonder why this is in the Bill, which leads only to the supposition that it is for reasons not to do with equality but more to do with politics—a sort of trawl to see what they can put in the Bill. That is very sad. On that basis, I shall not press my question but we will return to the matter later in the Bill.

Clause 57 agreed.

Clause 58 : Equality Act 2010: obtaining information for proceedings

Debate on whether Clause 58 should stand part of the Bill.

[Baroness Thornton]

My Lords, I had hoped that the noble Lord, Lord Lester, would have been with us today to move this Clause 58 stand part debate, which stands in both our names and those of the noble Lord, Lord Low, and my noble friend Lady Turner. Unfortunately, the noble Lord has been struck down. He has been in touch with me and the Minister about the fact that he is unable to be here and I am sure that the Committee will wish him a speedy recovery.

Noble Lords may recall that at Second Reading the noble Lord, Lord Lester, spoke with passion about the importance of this clause and his commitment to making his Government change their mind. I expect that between now and the next stage of the Bill that is exactly what the noble Lord will be doing, supported by other noble Lords, including those on these Benches.

Clause 58 repeals the question and answer procedure. The impact assessment states:

“Section 138 of the Equality Act 2010 requires a Minister of the Crown to prescribe forms in order that a person who thinks that they may have been unlawfully discriminated against, harassed or victimised, can obtain information from the person (employer or service provider) they think has acted unlawfully against them”.

This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first discrimination and race relations Acts were passed nearly 40 years ago. Information obtained through this process is intended to help an individual understand why he or she was treated in a particular way and whether they have a legal basis for making or continuing a claim in court or a tribunal.

In the Government’s own Red Tape Challenge, not one concern was raised on the questionnaire procedure. When the Government then issued a specific consultation on questionnaires, that too provided little case for change. Around 80% of respondents opposed abolition of the questionnaire procedure. There is no evidence to support the Government’s claim that these questionnaires are used for fishing exercises.

Case law makes it clear that businesses and other respondents are not required to answer questions that are disproportionate and that a poor response should not lead automatically to a finding of discrimination. Instead, the question and answer procedure is widely regarded by employers and employees as valuable. There is anecdotal evidence that it helps individuals to access evidence at an early stage that can lead to an early clarification of the issues and, if the case proceeds to a tribunal, to greater efficiency in the tribunal proceedings. Indeed, judges and tribunal members regard this procedure as a useful way of establishing the facts and clarifying the issues in contention. The questionnaires have also been known to prompt a quick resolution either through an early settlement or by demonstrating that no discrimination took place, helping to prevent unnecessary proceedings.

The current question form guides claimants to set out their allegations of discrimination in a clear way. This allows the person responding to understand what is being alleged and to provide an explanation of what happened. The absence of a structured standard form may result in some claimants issuing proceedings where they would not otherwise, increasing costs to tribunals and businesses alike. Moreover, removing the standardised structure of these forms, which most businesses are already familiar with, may place some onerous demands on businesses dealing with discrimination claims. Indeed, the Government’s own impact assessment fails to provide any empirical support for removing this “regulatory burden” on business.

Moreover, the financial assessment, which finds a net benefit of just £800,000 to businesses from implementing this measure fails to take into account both the non-monetary costs to the individual employees, who may be further marginalised by the retraction of their employment rights, and the additional cost to businesses and individuals of finding other means by which to obtain information in disputes.

The Discrimination Law Association, whose members comprise lawyers, advice workers and trade unionists supporting victims of discrimination said that,

“without the kind of information which individuals can only obtain through written questionnaires under Section 138, in many cases it will be almost impossible to prove discrimination”.

Indeed, without the questionnaires, an individual who suspects they have been discriminated against will have to institute formal proceedings before they can seek disclosure of documents from the employer. From summer 2013, it will cost £250 to issue a discrimination claim and a further £950 for a hearing. Many victims of discrimination will never bother to seek justice and that will give unscrupulous employers a green light to discriminate at will, I would suggest.

The questionnaire procedure facilitates access to justice, helps both parties to assess where a claim lies and enables them to reach an early settlement where that is appropriate. Therefore, it is crucial that the Government should not repeal Section 138 of the Equality Act.

16:00

[Baroness Whitaker]

My Lords, I support my noble friends and the noble Lord, Lord Lester, in opposing that the clause stand part because of my experience as a member of employment tribunals. Far from being a piece of red tape, the questionnaire speeds up and simplifies tribunal procedure. Briefly, the problem with discrimination is that it is very hard to prove. It is easy to understand why. You are trying to pin down a mental attitude which has resulted in unfair treatment. Employers, naturally enough, give all sorts of plausible reasons for this treatment. No one wants to admit that they have been unfair or racist.

Quite often the person bringing the case does not know how to expose discrimination in cross-examination. Sometimes they do not have a case, just a grievance or perhaps even an obsession. The questionnaire is vital in this process. It is the best way to deter hopeless cases and it elicits, in a very simple way, proper grounds of discrimination when they exist. It is a pity that we cannot know how many cases are deterred, with a great saving of public money. Can the Minister help on this? Do we have any figures?

In short, cases go better, faster and more cheaply with the questionnaire. That is why such a large proportion—83%—of consultees support it, including, as my noble friend Lady Thornton said, judges and tribunal chairs. Parliament would surely be misguided in accepting this clause. The questionnaire has stood the test of time and ordinary, day-to-day justice would be the poorer without it.

[Baroness Turner of Camden]

My Lords, originally I put my name down in support of the clause not being included. As we have heard, Clause 58 repeals the statutory procedure for obtaining information to support discrimination proceedings under the Equality Act. The TUC opposes this clause. This procedure has been a vital part of ensuring access to justice for victims of discrimination since our first sex discrimination and race relations Acts were passed more than 35 years ago. Legislators back then understood just how difficult it would be for an individual to enforce their rights without access to information about how others were treated in a similar situation or statistics on the impact of policies or practices of different groups. This is information that the employer holds, hence the importance of questionnaires.

In trade unions’ experience, these questionnaires help individuals to access evidence at an early stage, which leads to an early clarification of the issues involved and, if the case proceeds to tribunal, greater efficiency in the tribunal proceedings. The questionnaires have the added benefit that they may prevent claims going to tribunal because they often lead to early settlement of any potential claim or they produce evidence that shows that discrimination was not actually the reason for the individual’s treatment. Therefore, it seems to me that these questionnaires are of value to the employers as well as to the employees. I have no idea why the Government should think it a good idea to exclude them in future.

The Discrimination Law Association, whose members comprise lawyers and people who work on behalf of trade unionists and workers, has said that without the kind of information that individuals can obtain only from written questionnaires, in many cases it would be almost impossible to prove discrimination. It should be noted that 83% of those responding to the consultation that proposed repealing this provision, opposed the repeal, including unions, equality NGOs, the judiciary and members of the public. This seems to be a really strange stance for the Government to take. This provision helps both sides in a dispute and I cannot really understand why the Government should be proceeding against it, when it is against the recommendations of the TUC and the unions who are very active in this area.

[Lord Ouseley]

My Lords, I support the question and seek to clarify the context in which I offer support. It is one in which we have seen light-touch regulation being promoted by the previous Government and by this Government to get us to a point where, as has already been stated, we want employers to be in a position to hire and fire as they wish. That in itself will add greater discrimination for those who are likely to be discriminated against, on no reasonable basis.

The context is also one in which we see increasing tribunal fees being imposed along with the cutting of legal aid and funding for advice agencies to help individuals, who are relatively powerless in seeking to get redress if they feel that they have been discriminated against in employment. The situation with discrimination is that the employer always has the whip hand and the employee has very little knowledge, other than a feeling of being treated unfairly. Sometimes it is with evidence but they are unable to have information which places them in a position where they can argue and justify their claim for compensation.

The discrimination often occurs, in my view, for three main reasons. First, employers are lazy and it is a very quick fix to get rid of someone. Secondly, it is incompetence or, thirdly, it is just straightforward prejudice and bias. Those are the three main areas that appertain to discriminatory claims. The victim can move forward only with evidence and the respondent would like to be in a position of not having to disclose any information.

Usually, in my experience, most employers—particularly small employers—have no policies or procedures. Of those who have, the moment that you go back to them to try to explain that they may have breached anti-discrimination legislation and to ask them whether they have complied with their procedures, if they have any, they usually find very quickly that they want to come to an arrangement to conciliate or settle with a claimant. That is because they recognise that they are being challenged on a basis which has justification and that they have clearly failed to follow their own procedures, where they exist. In the case of very small employers, hiring and firing takes place very informally. There is usually a lot of nepotism, with family and friends being involved in the employment within small firms.

That said, it is quite important that we recognise that, notwithstanding all that I have mentioned about context, this repeal has come forward based on inaccurate and misleading information. There is no evidence of the burdens that have been created for employers. The original purposes of the questionnaires, from the Sex Discrimination Act 1975 and the Race Relations Act 1976, have been fulfilled because they enabled assessments to be made on the basis of facts and information provided. That enables that assessment to determine the strength or weakness of a case and may seek to persuade a complainant to withdraw because their case is so weak, or at least to put pressure on an employer to demonstrate that they are in an unsustainable position of seeking to defend the indefensible.

Evidence has shown throughout the years that the use of the questionnaires has helped us to reduce the costs and the burdens on both employers and employment tribunals. Without a questionnaire, a claimant could bring proceedings themselves and apply for disclosure or further information and such an order, when made, will bring considerably greater burdens on an employer. That is something that we should consider as a counterbalance to getting rid of the questionnaire—the real burdens that would be placed on employers if that process was pursued.

It cannot be overstated how crucial statutory questionnaires are to enable people to prove genuine discrimination claims. They offer a structured, time-bound way for a potential claimant to find out the employer’s or service provider’s reasons for taking certain action, and to gather evidence that the claimant cannot access in any other way. Without this kind of information, which individuals can obtain only through written questionnaires, in many cases it will be almost impossible to prove discrimination or a breach of an equality clause. The many individuals who have approached me about cases of alleged discrimination are at their wits’ end and give up in frustration. This will put us back many years, to the situation that preceded the Sex Discrimination Act 1975 and the Race Relations Act 1976.

Questionnaires are not a problem for employers who have nothing to hide. They are alerted at the earliest stage to the strengths and weaknesses of a possible discrimination or equal pay claim and generally take action swiftly to settle the case if need be. Conversely, repeal of the questionnaire procedure will mainly serve the interests of employers or service providers who do not wish to expose their potentially discriminatory policies and practices or cover up the misdemeanours of individuals in their employment. That is why it is important that we consider again whether this repeal has any justification and whether there is no better way in which to enable us, if necessary, to modify the questionnaire where it may be seen to be excessive and reduce it in a way that employers may see it as less burdensome, if that is the case, as a way of retaining it. In that way, we can ensure that we maintain the basis of helping to determine which cases have no basis to go forward to an employment tribunal, and persuading those complainants to withdraw, and seeking to impose the maximum pressure on those employers to settle with those complainants.

[Lord Low of Dalston]

My Lords, I came along this afternoon to support the opposition to Clauses 57 and 58 on the part of the noble Baroness, Lady Thornton, but I hung back in relation to Clause 57 because I was waiting for the noble Lord, Lord Lester, to intervene, as I knew that he had views on these matters—so I missed my turn. However, now that I know that the noble Lord is not here this afternoon, I shall say just a few words very briefly on Clause 58, although I fear that I shall not be able to speak with the same unrivalled knowledge and expertise on the subject as the noble Lord would have brought to the matter. But perhaps we will be able to hear from him in a later point in the debates on this Bill.

I was fourth on the list of those who put their names to this question, so I shall speak very briefly, but there are a couple of points that I would like to make. The Government have argued that the questionnaire procedure imposes considerable costs on business of nearly £1.5 million a year, with questionnaires becoming overlong and technical. However, research carried out by the Government Equalities Office has found that only 2% of private sector employers have had to complete a questionnaire in the past three years and most of those who did so agreed that responding to it had been straightforward. That does not sound like a great burden on business to me.

There is a great deal of concern out there in the legal profession about the prospect of the questionnaire procedure being done away with because, as others have indicated, it has been a very valuable part of the procedure in discrimination cases in enabling those cases to be dealt with more smoothly and expeditiously. As an example of this concern, the president of the Employment Tribunals Service, in responding to the Government’s consultation, went so far as to say:

“We further consider that the questionnaire procedure is very much in line with the pre claim resolution processes that are currently a consideration in primary legislation before Parliament. To remove this assistance to such a facility seems to the Employment Tribunal judiciary to be contrary to the overall policy of early resolution of claims or claims not proceeding where there is little merit. The proposed amendments to the Equality Act are considered by the Employment Tribunal judiciary to be retrograde steps in the administration of discrimination claims”.

That is a very strong statement coming from a very senior judicial official. The Government would be extremely unwise not to take very seriously advice coming from that quarter. Bearing in mind that kind of advice and the evidence to which I referred, which suggests that it is not nearly so much of a burden on business as the Government make out, I very much hope that the Government will think again and not proceed with Clause 58.

16:15

[Baroness Howe of Idlicote]

My Lords, I would like to say a brief word on this. I am particularly glad that my noble friend Lord Low has spelt out some of the concerns. It is particularly sad that we do not have with us the noble Lord, Lord Lester, who was so effective in designing the Sex Discrimination and Equal Pay Acts and who watched them through all their additional adaptations and changes. If anybody knows anything about the legal side of this, it is the noble Lord, Lord Lester.

I must admit that I was hoping for rather more information on the first debate, but I decided to say nothing and to see what happened. Both this and the first debate suffer from what I would call a reflection of the debates that we had on the general duty and on removing the duty to promote good relations. I find it very sad indeed that we have reached this situation after only two years, if that. It has taken so long to achieve advances in the area of equal opportunities, equal treatment and fairness, and two years is far too fast. One should let it be bedded in and create an atmosphere that can facilitate a rather faster flow towards equal opportunities on race and different religions, between men and women—whatever it happens to be. Had we let such an Act settle in for another five years, it might then have been worth while having a go.

We are being asked simply to strike out these sections. I may of course find that the noble Baroness is able to totally convince me with the detail that she gives that this really is not necessary. I hope that there will be an arrangement that will enable the noble Lord, Lord Lester, to have a say at a later stage in the debate on this subject. Frankly, without it we would be doing ourselves a disservice, quite apart from anything else.

[Baroness Oppenheim-Barnes]

My Lords, I hope that this is not too light a note, but this is an apology that I owe to the noble Baroness, Lady Howe, of some 40 years standing. I remember that she wrote to me making a complaint about the Caledonian girls. I do not know whether noble Lords are old enough to remember that there were pretty dolly girls in the advertisements. The noble Baroness will remember that she found them offensive. I found myself on “Any Questions” when the whole matter erupted again and I said that I rather liked to see these nice brisk young girls. “Who wants to be served by old bags?” I said, only to receive at least 20 letters from members of the public saying, “You’re on the radio. How do we know that you’re not an old bag yourself?”. At this point I apologise.

[Baroness Stowell of Beeston]

I do not know how to follow that.

I join other noble Lords in wishing the noble Lord, Lord Lester, a speedy recovery, although I know that had he been here he would not have been speaking in support of the Government today. I know that he would have brought his own great expertise to these discussions and I am sure that he will return to us very soon and we will have the benefit of his expertise. Certainly, he was kind enough to give me some of his time over the past few weeks to discuss this matter in great detail and I am very much aware of his position on this and the history of his involvement over a long period.

Clause 58 does not diminish people’s right to equal treatment or their access to justice where they believe they have encountered discrimination. Let me be clear: repeal of the obtaining information procedure will not reduce an individual’s right to pursue a discrimination case or the remedies available to those who are successful. Our intention is to simplify the whole pre-claim process so that all parties achieve the right outcome in the most straightforward and cost-effective way. I will discuss in more detail what we propose as an alternative before I sit down.

I will not rehearse the whole process involved in obtaining information except to make the point that Section 138 provides that Ministers must prescribe forms to be used for the procedure in secondary legislation. Business and the Government now believe that, over time, enshrining this process in legislation has led to it being out of date, burdensome and to some extent one-sided.

Let me be clear from the outset that not one single employer or business organisation told us that they saw value in the questionnaires. I know that the noble Baroness, Lady Thornton, and others requested information to that end. I will happily ensure that that is provided after today’s debate. As noble Lords have said, this process has been in anti-discrimination legislation for nearly 40 years. I must say to the noble Baroness, Lady Howe, that while I know that some of her remarks were about more recent legislation, this practice of obtaining information is now very much something that has been with us and has been tried for a very long time, but I would add that the process of obtaining information is only in anti-discrimination legislation; it is not replicated in other areas of employment law.

During the past 40 years, much has changed. The procedure was initially created to help to level the playing field between individuals and employers or service providers through a simple question and answer process to help to establish basic facts to determine whether discrimination had occurred. This was necessary in 1975. At that time, no one had brought a sex discrimination claim or knew whether it would be possible to do so successfully without any assistance. However, in recent years, 10,000 to 20,000 have been accepted by tribunals every year.

In 1975, when the legislation was being debated in Parliament, the Government included the obtaining information procedure, because they did not wish to make changes to the arrangements governing the burden of proof. As was said then, the procedure was,

“likely to tilt the balance somewhat the other way”.

The Government continued that they were,

“enabling the woman complainant … to … write a letter or to use a prescribed form”.—[Official Report, Commons, 18/6/1975; col. 1603.]

Since then the legislation on the burden of proof has changed to make it explicit that the complainant has to put forward only facts from which discrimination could be deduced, and it is for a respondent to prove that their actions were not, in fact, discriminatory. From the point of view of a respondent, it therefore seems that both aspects of the law are now, in their minds, stacked against them. Employers believe that over time the process has become heavily legalised and is frequently misused as a means of gathering detailed information, whether it is relevant or not. Such information is frequently sought in cases where the individual has already taken the decision to take their case to a tribunal and is simply forcing as much pre-claim disclosure as possible.

[Baroness Thornton]

Can I query what the noble Baroness has just said about getting information prior to a claim? Is that not a good thing? Does it not mean that the process will be sped up and settled, and possibly not even go to a tribunal if there is more information available? I am not sure why there is a problem and why the noble Baroness seems to think that this process is being misused. It collects lots of information. Is that not the whole point?

[Baroness Stowell of Beeston]

Obviously I was not being clear. The point that I was trying to make is that, while the purpose of the legislation is to help people to obtain information so that they can decide if they have a case, it is apparent that some individuals have already decided that they are going to take their case forward and are using this process for gathering information in a pre-claim disclosure arrangement.

[Baroness Thornton]

I am sorry to pursue this point. How many cases like these are there? The noble Baroness may not be able to tell me now but I would like to know from where the evidence for this has come. How many were there as a proportion of the consultation process?

[Baroness Stowell of Beeston]

I will endeavour to provide further information in that area and follow up in writing to the noble Baroness.

Noble Lords have argued against Clause 58 from the perspective of claimants, so may I put forward the arguments from the perspective of employers and the business community, which it is important for us to take account of? Collating this information can be onerous for employers, particularly where 20, 40 or even 100 additional questions are asked. They can often see that the information requested has little or no merit to a claim. However, they feel bound by the legislation and by the legal advice, which they feel is necessary to engage with and respond to, and within the statutory time frame. These exact concerns the then Opposition raised during the 1975 debate on the Sex Discrimination Bill, where it was said:

“There is no limitation on what can be asked. There is no screening process”.

If the respondent,

“decides that it is unsafe not to answer them, his answers to those questions may be admitted as evidence”.—[Official Report, Commons, 18/6/1975; col. 1602.]

Now, as then, the problem is not just simplifying the questionnaire form, which is simple and straightforward; the problem is ensuring that the questionnaire does not get used as the starting point for rafts of detailed and leading questions. Clearly we cannot and do not want to restrict the dialogue between parties where they are trying to explore and perhaps resolve their differences. That is why we are proposing a different approach altogether, based on conciliation and guidance, which I shall come on to.

The noble Lord, Lord Low, referred in the context of the questionnaire form to some 2009 research and said that employers had responded to it by saying that the questionnaire was straightforward. The GEO research in 2009 concerned only the layout of the questionnaire and not the whole process of dealing with the completed set of questionnaires from a claimant. Often the extra material is the problem.

Those arguing in favour of retaining these provisions—obviously they are speaking today—claim that they are often helpful in weeding out potential claims that are unmeritorious, or those based on mistake or misunderstanding. The noble Baroness, Lady Whitaker, was very specific on that point. She asked whether there were any statistics available to show how many cases this process had avoided coming to court. I do not have any statistics available, but I know that we have not received any from the Tribunals Service. I am not clear about whether we have asked for them, but it has not been able to provide them, or perhaps it just has not put any forward. If it is the latter, then obviously I shall follow that up. However, not a single response that we have received from our consultation, from an individual business or representative body, endorses the view put forward by the noble Baroness and others.

16:30

[Baroness Whitaker]

I am sorry to interrupt the noble Baroness. I am grateful for her answer about the statistics, as far as it goes. As regards what the employer stands to gain from retaining the questionnaire, which was the case that I was also trying to argue, would she comment on the British Chambers of Commerce survey which showed that none of the businesses questioned raised concerns about the questionnaire procedure? In the Government’s survey of 2009, when I think they examined 811 businesses, was it not the case that only one organisation said that the questionnaire had been a time-consuming exercise? Could she comment on that?

[Baroness Stowell of Beeston]

If the noble Baroness is referring to 2009, I think I have already answered that point by explaining that that was about the layout of the questionnaire and not the whole process of dealing with a full set of questions from a claimant. However, I am clear that the response to our consultation from the business community was clear. As I said at the beginning, I am very happy to follow up, in writing to the Committee, with further information to support that point. I should add that in some cases the cost to business, including legal advice, often runs to several hundreds of pounds and that is before any costs associated with defending the case at a tribunal.

Having said that, I turn to what is a more constructive alternative way forward. We are agreed that there is value in the aim of encouraging a pre-claim dialogue and exchange of information. There is merit in establishing the facts of a potential discrimination case, and this is certainly what our proposed early conciliation of certain employment claims is intended to achieve. Noble Lords who followed this Bill in debates on earlier clauses will be familiar with the sort of changes that we are proposing. I think those clauses have attracted considerable support.

People thinking of bringing proceedings could still seek information from an employer or service provider about an alleged breach of the Equality Act 2010, either verbally or in writing. As I read that out, I should make it clear that that can be done orally or in writing because I am not aware of anyone writing without using words. That point was stressed by several of those responding to the consultation. This is in a climate where, compared to 40 years ago, businesses are on the whole far more transparent about the information they disclose. I am speaking generally but I think organisations understand the importance of transparency in the way they operate, and that attaches to their reputation. Employers or businesses who refuse to respond to reasonable requests for information will continue to run the risk of this being taken into account by a court or tribunal when deciding whether a basic case of discrimination has been made out. They will be more conscious of that risk than in the past for the reasons that I have just given.

Even if the parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The Government Equalities Office is in discussion with ACAS with a view to producing approved guidance which would help set out for employers and potential claimants in discrimination cases—

[Baroness Thornton]

For my own clarification, because I have not heard this process described in quite this way, am I right in understanding that if somebody wants information because they think they have been discriminated against by either their employer or a service provider, they have to go to ACAS first? Is that right?

[Baroness Stowell of Beeston]

They do not have to go to ACAS first but in the conversations that the Government are having with ACAS about this process, ACAS is suggesting that it would be preferable for somebody who is considering making a claim to go to it first as it would much rather have that initial conversation without the burden of a lot of information so that the parties do not get bogged down in the detail of, “He says, she says” at that stage of the process.

[Baroness Thornton]

Does the Minister not think it likely that ACAS will fill in a form?

[Baroness Stowell of Beeston]

The noble Baroness may be more familiar with the processes followed by ACAS than I am. I cannot speak for ACAS and I do not know what it would undertake to do. I am just reporting to the Committee what ACAS advises is the best way forward in this context.

If I may conclude the point that I was making, ACAS seeks to produce approved guidance which would help set out for employers and potential claimants in discrimination cases both the scope and requirement for disclosure of pre-claim information. This will be an ACAS-led approach, with the TUC and equality stakeholders as well as employers invited to participate in ensuring that the guidance is right.

I have indicated that I will follow up in writing to some of the points that have been made, but I hope that I have provided the Committee with sufficient assurances to make clear that the repeal of Section 138 of the Equality Act 2010 will not affect any individual rights under law, will command business confidence and will be followed up by a lighter-touch process in consultation with key parties, which will deliver, as I said at the start, the outcome that everybody has a right to expect if they feel that they are in any way at risk of discrimination.

[Baroness Thornton]

My Lords, I thank the noble Baroness for that useful and helpful explanation. I also thank the noble Lords, Lord Low and Lord Ouseley, the noble Baronesses, Lady Turner and Lady Howe, and, indeed, the noble Baroness, Lady Oppenheim-Barnes, who is not in her place, for their interventions, which I look forward to reading in Hansard so that I can fully understand the insult that was meted out to the noble Baroness, Lady Howe.

My noble friend Lady Whitaker rightly said that we probably have not done justice to what the noble Lord, Lord Lester, would have said. I say to the Minister that this is the beginning of this process rather than the end. We will need to have further discussions on this issue, for which she always makes herself available. I think that the Minister made the false assumption that we were talking only about employees. In fact, I referred in all my remarks to employees and employers because we think that this form is useful to everybody concerned. The Government’s proposal to abolish it fails on almost every ground, including that of cost. Further, I do not think that their proposal will be any more efficient. The noble Baroness described what she thinks people will do in going to ACAS. However, it seems to me that that makes the process more complex. That does not feel like a light touch process to me. I am happy to have a discussion about that but it feels like a more complex process.

The noble Baroness is deceiving herself if she thinks that ACAS will not go into drafting guidance and forms, and do many things based on what already exists. This fails in terms of efficiency, it does not add anything to the aims of enterprise in this Bill, and it certainly fails in terms of the test of fairness and access to justice. I am afraid the Government have not made the evidence available to the Committee today to convince us that this is a necessary clause. On that basis, I will not proceed with my question. Even if I do not return to this, the noble Lord, Lord Lester, can probably be trusted to do so.

Clause 58 agreed.

Clause 59 : Primary Authorities

Amendment 28ZDA

Moved by

[Lord McKenzie of Luton]

28ZDA: Clause 59, page 56, line 21, after “shared” insert “to a material extent”

[Lord McKenzie of Luton]

My Lords, I beg to move Amendment 28ZDA and to speak to Amendment 28ZDB. These are probing amendments and I doubt that they will delay the Committee for very long. I should be clear that we strongly support the primary authority scheme, which was set up, of course, under the previous Labour Administration following the Hampton review. Despite its short life to date, it has been a success, and we further support the sensible extension of the scheme. When I last checked the numbers back in November, the scheme encompassed some 602 businesses, 93 local authorities and more than 58,000 premises, with 1.6 million employees and nearly 2,000 partnerships. The Minister may have an update on that.

The current criteria for participation require a business to operate across council boundaries, and the regulatory functions covered are health and safety, environmental health, trading standards, food safety and petroleum licensing. There are two main aspects of the scheme: the primary authority will provide assured advice to businesses, and the primary authority and businesses can prepare a national inspection plan. Clearly, the overall benefits to business come from a consistency of approach and the prospect of reducing the regulatory burden and improving regulatory efficiency.

So far as extending the scheme is concerned—as proposed by the report of the noble Lord, Lord Young, and provided for in Clause 59—there are three main dimensions: first, extending the eligibility rules so that more businesses can be included; secondly, strengthening the provisions relating to primary authority inspection plans; and thirdly, widening the range of regulatory areas covered by the scheme. The first of these is dealt with by Clause 59 and the second by Clause 60. As I understand it, the third will be accomplished by way of statutory instrument, and the Government are currently consulting on a specific proposition. We will clearly have the opportunity to consider these in due course, but I have no particular problem with the areas proposed. However, I ask the Minister if there is anything else in the pipeline, and to confirm that regulation of sunbeds is still included now that the noble Lord, Lord Marland, is no longer part of the team.

Amendments 28ZDA and 28ZDB apply to Clause 59, which looks to extend businesses which might be included in a primary authority scheme. The impact assessment identifies situations where this might be accomplished, and in particular identifies corporate groups, franchise arrangements and trade associations. The test for inclusion provided for in the clause depends upon entities having a shared approach to compliance. Amendment 28ZDA is a probe to better understand the Government’s views on the meaning of this phrase. Of course, the provision is not restricted to just those areas identified above. Clause 59 gives a wide power to the Secretary of State to determine whether the shared approach test is satisfied. The Secretary of State may from time to time publish guidance about what is to be taken into account.

Amendment 28ZDA seeks a better understanding of the Government’s interpretation of a “shared” approach to compliance. The Minister in another place said that it simply means that businesses consistently followed the same centrally issued guidance to fulfil their regulatory obligations. I suggest that this is a bit thin; anyway, it seems to focus on the assured advice benefits of the scheme rather than on the national inspection benefits. I offer the Minister the opportunity to put more on the record about the scope of this. As for the development of guidance, our amendment requires this to be done after due consultation and that this requirement should be in the Bill. When is the first guidance to be available and what consultation is planned for this? Perhaps the Minister can let us know. I beg to move.

16:45

[Lord Deben]

My Lords, I support the tenor of these amendments and wish to say how strongly I support this part of the Bill. I have no direct interest in it because the companies with which I am associated do not tend to go across the county border in quite the way in which it might affect them. However, if I do have an interest I will declare it.

The issue I want to raise is that this has been a very successful extension of a system that was in operation even before the previous Government. Other examples included how the supermarkets were able to have a lead council that would help them to get the basis upon which they would apply elsewhere, so this has been a growing piece of work. I was pleased to hear the noble Lord put forward his support for this system because it really makes a difference and is not a way of avoiding anything. It is merely a way of ensuring that there is a continuity and consistency in the implementation of law. It also enables companies that want to do the right thing to do it and then not find that they are asked to do something different somewhere else in the country. I think all of us, right across the board, have found embarrassing situations in which in one place you are asked to do the opposite of what you have been asked to do next door in a particular kitchen or over a particular kind of presentation.

This is an extremely important change, which was amplified by the previous Government and is being amplified here. I, too, would like to hear from the Minister whether this is the beginning of a continuous process and whether it will be much deeper than it is in the Bill. Can we hope that more and more areas will be covered, not in a way that reduces the efficacy of regulation but one which increases its efficiency? It is not that I want people to get away with anything; I just want people to know where they are, wherever they are. This amendment points to that and I hope that the Minister will be able to help us see this as a continuing and growing trend in government regulation.

[Lord Curry of Kirkharle]

My Lords, I declare an interest in that I chair the Better Regulation Executive, which was very much part of recommending these changes. I am delighted that the noble Lord, Lord McKenzie, recognises the value of the scheme and I pay tribute to the previous Government for having introduced it because it is a valuable tool and has reduced significantly the burden on businesses that have participated in it. My concern about the proposed amendment is the definition of “to a material extent”. It will create a lot of debate and potential confusion around how one defines “material extent”. The trade associations that have been consulted and would be keen to participate in this scheme have members who all have a common interest. I see this as providing a real opportunity to take a significant regulatory burden away from businesses that are members of a trade association and would wish to participate in such a scheme, so I have a problem with Amendment 28ZDA.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)]

My Lords, before I turn to these amendments I would just like to thank the noble Lord, Lord Stevenson, for his very kind and extensive words of welcome at the previous Sitting of Committee. I look forward to a continuing and fruitful dialogue with the noble Lord. As he said himself, we sing in the Parliament choir together, although I hazard a guess that his tunefulness is somewhat superior to my own. I look forward to working closely with him and other noble Lords over the coming weeks on this Bill. I also confirm that I intend to propose meetings on the various matters where it was suggested this would be helpful at earlier stages of the Committee.

Turning to this group of amendments, I thank the noble Lords, Lord McKenzie and Lord Stevenson, for their amendments to Clause 59 concerning eligibility for the primary authority scheme, which I shall respond to in turn. This scheme was of course introduced by the previous Government, as the noble Lord, Lord McKenzie, mentioned, and has been much welcomed.

Clause 59 broadens the criteria for businesses to be eligible for the primary authority scheme. It will mean in practice that many small businesses that operate in only one local authority area will be able to join, together with similar businesses which share an approach to compliance. I hope that I can answer the question from the noble Lord, Lord McKenzie, about what that means.

The Government see a shared approach to compliance as one that a business consistently follows in order to fulfil its regulatory obligations. Such an approach should result from guidance or procedures issued from a single point, such as a head office or a trade association. This will mean that franchises of the same brand or members of the same trade association, for example, could qualify. They will be able to enjoy the valuable assurance that a primary authority partnership can bring.

The new eligibility criteria have been intentionally drafted broadly. This is to ensure that as many small businesses as possible can benefit from reduced regulatory burdens. A business will be able to join the scheme only if the Secretary of State is satisfied that the business meets the eligibility criteria, and statutory guidance will provide more detail about the matters likely to be taken into account in assessing eligibility under the new criteria.

It is intended that further detail as to the circumstances likely to constitute a shared approach to compliance will be included in statutory guidance. Adding further detail to the drafting of the clause could inadvertently restrict participation in the scheme for the very businesses that this clause is attempting to help.

Of course, having a broad definition of a shared approach to compliance in the legislation means that a wide variety of groups of businesses could qualify for the scheme and the nature of the resulting partnership will rightly need to vary. For example, where a trade association acts purely to distribute information to its members, the primary authority partnership will be very different from one which involves a trade association that provides a fully audited accreditation scheme for its members.

This type of detail will also be given in the statutory guidance and the statutory mechanism for scrutiny of proposed new partnerships by the Secretary of State provides assurance that shared approaches to compliance will be handled appropriately.

Amendment 28ZDB seeks to impose a statutory requirement for consultation before the Secretary of State issues statutory guidance on shared approach to compliance. Guidance for businesses and local authorities will be very important to provide detail of how the extended scheme will work in practice. The views of all interested parties will be vital in making the scheme work as well as it possibly can. For this reason, a commitment was given during Committee debates in the other place that,

“any guidance published as a result of the clause will be developed in consultation with stakeholders, including businesses, local authorities, trade associations and business groups”.—[Official Report, Commons, Enterprise and Regulatory Reform Bill Committee, 12/7/12; col. 606.]

I should like to pick up on a number of the comments raised. My noble friend Lord Deben asked about continuing the process. The Government are committed to the primary authority scheme. It is a key tool in reducing red tape and ending the tick-box culture of regulation.

The noble Lord, Lord McKenzie of Luton, asked at the beginning of the debate whether there were any extensions to primary authorities in the pipeline. I can confirm that the Government are consulting on extending primary authorities to include several new regulations, including those on sunbeds, if I read the noble Lord correctly. He also asked about statutory guidance and consultation. The Secretary of State already issues statutory guidance in relation to the primary authority scheme, and Clause 59(5) provides that the Secretary of State can also issue guidance on the matters likely to be taken into account in assessing whether a business meets the new “shared” approach to compliance test. In Committee in the House of Commons, a commitment was made to develop guidance in consultation with stakeholders, including local authorities. I can confirm that the existing statutory guidance will be updated to include further content relating to these proposals. This will be in place, in time for the proposed extension of eligibility becoming effective.

In summary, I hope that noble Lords will not press their amendments, because I hope that I have provided sufficient reassurance that these matters will be dealt with by guidance, taking into account the views of interested parties.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his reply, which has helpfully taken us forward a little bit. The extension proposed is much more focused on the assured advice component of the primary authority, rather than inspection plans. But I will not pursue that at the moment. I welcome the repeated reassurance that consultation will precede any issue of guidance. That is helpful. I am certainly pleased to see the enthusiastic support of the noble Lord, Lord Deben, for this approach, and indeed that of the noble Lord, Lord Curry.

The wording “material extent” was simply a peg on which to hang an amendment so that we could have the discussion that we have just had. I accept entirely that if it appeared in its current form in the Bill it would not be particularly helpful. I thank the Minister for his comments and I beg leave to withdraw the amendment.

Amendment 28ZDA withdrawn.

Amendment 28ZDB not moved.

Clause 59 agreed.

Clause 60 : Inspection plans

Amendment 28ZDC

Moved by

[Lord McKenzie of Luton]

28ZDC: Clause 60, page 57, line 11, at end insert—
“(3B) Where functions equivalent to relevant functions are carried out by other regulatory bodies, any inspection plans shall have regard to the way in which such other bodies exercise their functions.”

[Lord McKenzie of Luton]

My Lords, in moving Amendment 28ZDC I shall also speak to Amendment 28ZDD.

Amendment 28ZDC is a probing amendment designed to focus on the issue of health and safety and the split responsibility between the HSE and local authorities. This was another issue raised by Professor Löfstedt in his independent review of health and safety legislation. The HSE is the national regulatory body responsible for promoting better health and safety and setting the parameters for enforcement activity, but enforcement and inspection activity is split between the HSE and local authorities. The HSE is responsible for traditionally high-risk places and local authorities for those that have less risk.

As Professor Löfstedt’s review points out, there have been many good examples of joint working and co-ordination between the HSE and local authorities, including joint inspections and flexible warranting. An engagement of primary authorities in this process certainly enhances outcomes. Professor Löfstedt identifies that, despite improvements, there remain inconsistencies across local authorities’ implementation, with some local authorities assigning a lower priority to health and safety than, say, food safety. He also drew attention to the problem that the premises that are considered relatively low-risk within the HSE areas of responsibility are now not subject to proactive inspection at all as a result of the government edict, but may nevertheless be riskier than workplaces falling within the local authority orbit. That is accentuated by the fact that local authorities undertake more inspections than the HSE—nearly 200,000 to the some 33,000 of the HSE—although the latter is of course to reduce.

With greater emphasis on HSE responsibilities and engagement, the primary authority route would be one means of improving the situation, as this probing amendment suggests. However, the professor has a more radical proposition, which is to have a single body directing health and safety across all workplaces, and that this responsibility should pass to the HSE. Can the Minister offer a government view on that proposition?

Amendment 28ZDD touches on the extent to which local authorities may exercise their inspection functions outside the primary authority plan and co-operate in providing feedback. Clause 60 makes following the plan mandatory unless prior written permission has been given. The LGA argument is that this mandate is unnecessary and that encouragement to co-operate will increase the effectiveness of inspection plans. We will hear more of this in a moment.

Our amendment is an attempt—perhaps not a very refined one—to find a middle way. Can the Minister outline circumstances in which the Government consider it reasonable for a local authority to seek and be granted an easement from the inspection plan provided by the primary authority? The impact assessment states that 5% of primary authorities currently use inspection plans, which is a surprisingly low percentage. What are the Government’s estimates of the likely increase in this percentage in the period ahead? I beg to move.

17:00

[Viscount Younger of Leckie]

My Lords, I thank the noble Lords for their amendments to the inspection plans clause, to which I shall respond.

Clause 60 strengthens inspection plans so that local authorities must not deviate from a valid plan without prior agreement from the primary authority. This will ensure that inspection plans can have maximum impact to reduce the burden of regulation for businesses and regulators, and target scarce resource where it is most needed. Amendment 28ZDC proposes that the legislation should require inspection plans to have regard to the way other regulatory bodies exercise equivalent functions.

This is an interesting idea and it gives me the opportunity to underline the Government’s view that it is paramount for regulatory bodies to work together consistently within the system. That said, we do not feel that this amendment is necessary. The legislation already requires primary authorities to take into account relevant recommendations of other regulators relating to inspections when developing inspection plans. The statutory guidance reinforces this requirement.

Further, processes have been agreed with the regulatory bodies, which ensure that national regulators have the opportunity to comment on draft inspection plans before the Secretary of State gives consent. There are support mechanisms that allow primary authorities to raise queries and assure themselves that their course of travel is in line with policy and best practice in the area.

Amendment 28ZDD proposes that an exception be made to the binding nature of inspection plans where a local authority believes that it is not appropriate in the circumstances to carry out particular inspection activity in accordance with an inspection plan. The Government agree entirely that there may be circumstances where it is not appropriate for inspection activity to follow inspection plans.

The underlying statutory guidance accordingly makes clear that inspection plans apply only to routine inspections carried out in a proactive way by the local authority. An inspection plan would not impede a local authority in responding to specific complaints or local intelligence. In fact, a plan is likely to strengthen an officer’s ability to react by providing important information about the company and its approach to compliance.

I should like to make it clear that there is nothing in the proposed changes to the operation of the primary authority scheme or inspection plans that would prevent or delay local authority action in response to complaints or specific local concerns. The Government firmly believe that primary authority inspection plans must become binding and I shall give detailed reasoning for that in the stand part debate, which we will come to in a few moments.

I will pick up on a point raised by the noble Lord, Lord McKenzie, concerning the Health and Safety Executive’s role in relation to local authorities. As the noble Lord described in detail, the Health and Safety Executive worked through local authorities for categories of businesses considered as low-risk. I should clarify that “primary authority” applies only to local authority regulators. The Health and Safety Executive responded to Professor Löfstedt’s recommendations separately. I hope, therefore, that noble Lords will not press these two amendments as the existing scheme for inspection plans contains the necessary safeguards.

[Lord McKenzie of Luton]

My Lords, I am grateful to the Minister for his response. I certainly do not propose to press these amendments or take them forward on Report. I am not sure that the Minister’s reply, which was generally helpful, fundamentally dealt with the position of the HSE and the split enforcement role of health and safety between local authorities and the HSE, particularly with the quite clear proposal that came from Professor Löfstedt’s report. I suspect that this is a debate for another occasion and not for the content of this Bill. Accordingly, I beg leave to withdraw the amendment.

Amendment 28ZDC withdrawn.

Amendment 28ZDD not moved.

Debate on whether Clause 60 should stand part of the Bill.

[Baroness Greengross]

My Lords, listening to the Minister, I felt rather sad that I was going to stand up and say what I intend to say. It is because these primary authority partnerships are such a good thing and have not been around very long that I want to oppose Clause 60 being part of the Bill.

I spoke briefly about this at Second Reading to say exactly that; that they need to be encouraged and that they should not be overturned, through this Bill, by central government when they intervene in local partnerships by directing councils to follow inspection plans. I declare an interest as a vice-president of the Local Government Association and I speak in that capacity. In these difficult times, we know that councils use a wide range of tools to ensure that businesses receive the tailored support that they need. The primary authority is one of the key tools that councils can use when they want to provide individual businesses with tailored support, and when they want to reduce red tape, promote consistent advice from councils and ensure that the limited enforcement resource is risk-based and focused on priorities. I would like to see the removal of this clause, which would make it compulsory for enforcing authorities to abide by the content of inspection plans, which I know is the opposite of what the Minister was saying.

The LGA—I declare an interest—recognises the important role that inspection plans can have in informing enforcement activity but councils are already required by law to have regard to these plans. There are many examples of inspection plans being used to inform the work of councils with companies that have multiple business outlets. Primary authority has only been running since 2009 and has only very recently gained a critical mass of business involvement. It is therefore far too early to identify more than initial findings about the scheme and certainly too early to make wholesale legislative changes. In fact, the evaluation of primary authority involved discussions with only 24 businesses and there are only 11 inspection plans in place.

Furthermore, the evaluation showed that of those councils that had used inspection plans, fewer than 50% found that they enabled a more targeted inspection. It is therefore simply not necessary for central government to intervene in these local partnerships by directing councillors to follow inspection plans. Central direction will reduce flexibility and innovation at a local level. More than that, it will introduce a layer of bureaucracy for both primary authorities and enforcing authorities that fails to accommodate local circumstances and the judgment of competent enforcement officers.

This step also contradicts the Government’s commitment to reduce red tape for councils. It might mean many more delays, in spite of what the Minister suggested. It is an unnecessary use of legislation. I know that the Local Government Association would be happy to discuss opportunities for increasing awareness of inspection plans and how they can be used to achieve more focused and targeted inspections, which would help to achieve the intended outcome without tying councils in unnecessary red tape.

[Lord McKenzie of Luton]

My Lords, I look forward to the Minister’s response. I am bound to say to the noble Baroness, with whom I normally agree wholeheartedly, that I remain unconvinced of the case that has been made. There is an easement for local authorities that want to go down a different route to that provided for in the Bill. As the Minister said in response to my previous amendment, local authorities are free to react to emergency situations or local complaints should they arise. The inspection plans apply only to routine and proactive inspections. I wait to hear the Minister’s response, but this is not a proposition with which we can align ourselves.

[Lord Curry of Kirkharle]

My Lords, I will also try to reassure the noble Baroness, Lady Greengross. Under the new governance arrangements that exist for the primary authority scheme with the Better Regulation Delivery Office, there is significant representation from local government on that governance body. I therefore hope that she will be reassured that there will be considerable discussion between the Better Regulation Delivery Office and local government on how the scheme will be implemented.

[Viscount Younger of Leckie]

My Lords, Clause 60 strengthens primary authority inspection plans. Its effect is to make it binding for local authorities to act in accordance with a plan which is in force. Strengthening inspection plans in this way is a crucial measure for the Government’s aim of,

“ending the culture of ‘tick-box’ regulation”.

Under the current provisions, primary authorities and businesses can work together to establish an inspection plan. Several businesses have done so, and report more informed and better targeted enforcement as a result. As things stand, local authorities must have regard only to plans, and are not bound by them. We have been told by primary authorities that plans and requests for feedback are not being followed in many cases. This means that the full benefits of inspection plans are not being realised, and many businesses are put off developing them because they do not have confidence that they will be followed.

With this clause, it is our intention to remedy this problem and to improve inspection plans. We are giving them the teeth that they need to deliver as much benefit for businesses as possible. This will ensure that businesses and primary authorities have certainty that inspections will be carried out in accordance with the plans in which they have invested. It will also mean that essential, timely feedback is received to keep the business informed of its key risks. Inspection plans are a crucial tool in enabling businesses to earn recognition for their compliance procedures and to reduce the burden of regulation. They also allow firms to focus on the key risks to their business and optimise their procedures, saving valuable time and wasted effort and allowing them to provide a better service to their customers.

17:11

In turn, this allows more focus to be placed on growth and the creation of jobs. A business with an inspection plan is informed about where its risks lie. It knows where attention needs to be focused and can plan accordingly. Management time does not need to be taken up with repetitive requests for information and unnecessary regulatory activity. John Lewis certainly agrees. Its compliance and food safety manager says that its inspection plan leads to,

“more relevant, risk based inspections at branch level and cuts out the duplication of time spent with inspectors in each branch looking at centrally produced information such as the food safety management system”.

The changes enacted by Clause 60 will give rise to the next generation of inspection plans. The enhancements will mean that existing plans will reach their full delivery potential because all local authorities will inspect in line with the plan and there will be an increased flow of important information following inspections. Importantly, the changes will maximise the number of businesses that decide to develop a plan. The value for them will be much more clearly defined. It is little surprise then, that Iceland Foods’ health and safety manager welcomes the change:

“Plans to make the Inspection Plan more binding on regulators would be welcomed as this will provide further opportunity to receive feedback on compliance levels in areas of particular interest”.

Clause 60 delivers improvements in the enforcement of regulation exactly where businesses need them most—by allowing them to focus their precious resource on key risks. Of course, concerns have been raised about this clause. The Local Government Association and others have questioned whether strengthening inspection plans reduces local authority autonomy and undermines regulatory protection. I listened carefully to the words expressed by the noble Baroness, Lady Greengross. I assure the Committee that we have thought about both of these points and believe that neither localism nor consumer protections will be compromised.

First, inspection plans can assist local authorities to plan their work with a business in advance as well as target inspections according to risk, meaning that resources can be better directed towards compliance problems. Hertfordshire County Council is one of many that support this view. Its representative stated:

“The partners are looking to use inspection plans to better target and coordinate regulatory activity to the benefit of business and local authorities. This will have the effect of avoiding duplication and freeing up local authority regulators time to target other priority areas for enforcement”.

The freedom of authorities to respond to complaints or specific intelligence about non-compliance that they receive is unchanged by this clause; inspection plans apply only to routine activity, such as scheduled inspections. That is made clear in the statutory guidance. Supporting this view, the British Retail Consortium, when appearing in front of the Committee in the other place said:

“That then leaves the individual local authority that is not the primary authority free to look at complaint-driven aspects and other things, and I would say that that supports localism rather than erodes it”.—[Official Report, Commons, Enterprise and Regulatory Reform Bill Committee, 21/6/12; col. 124.]

Protecting consumers is at the heart of a risk-based approach to enforcement. Enhanced understanding of the business and its compliance procedures means that the inspections can focus on areas where risks are posed, so increasing the quality of protection they are able to deliver. Consumer protections are also enhanced as a result of a business developing a plan and receiving feedback from it. The insight gained on compliance procedures and their operation allows improvements to be made quickly, as needed.

In conclusion, inspection plans are an essential mechanism for reducing the burden of regulation. They allow a business which already enjoys a productive relationship with a primary authority to focus its resources according to risk and minimise wasted effort. The clause will encourage more businesses to work towards earned recognition of their compliance procedures, thereby saving time and effort. It will also increase the impact of existing plans. This will ultimately free business resource for growth, and enhance protection for consumers.

I hope that I have gone some way to answering the questions and concerns raised by the noble Baroness, Lady Greengross. On the issue that she raised about direction or otherwise from central government, inspection plans are written by local authorities for local authorities. Central government’s role is simply in creating a framework for that scheme.

The noble Baroness also questioned the evidence for change in relation to inspection plans. The data from businesses and primary authorities with inspection plans already in place indicates that a significant number of inspections are occurring that do not follow the plans and that feedback is not always provided following an inspection, even when it is requested. In a recent evaluation of the primary authority scheme one business said that of 28 inspections carried out, only four adhered to its inspection plan. A further business said that it had no fewer than 341 inspections and that only 53 resulted in feedback, despite it being requested in its inspection plan.

Finally, the noble Baroness raised the question of whether binding inspection plans add a particular burden to local authorities. The answer is no, and that inspecting in accordance with inspection plans will reduce burdens for local authorities by assisting them to prepare for inspections and indicating which areas of the business require inspection, thereby saving time. Inspection plans may also reduce the need for inspections, thereby saving effort. I commend the clause to the Committee.

[Baroness Greengross]

My Lords, I thank the Minister, who has reassured me to some extent. I am not brave enough to argue with the opinion of an authority such as John Lewis—nobody can. However, there are quite a lot of questions for the Local Government Association to consider carefully. The views that I presented to the House were directly received from that body, and I know that it has some further concerns. I will come back later on this if necessary. I thank the Minister and the Committee.

Clause 60 agreed.

Clause 61 : Civil liability for breach of health and safety duties

Amendment 28ZE

Moved by

[Viscount Younger of Leckie]

28ZE: Clause 61, page 58, line 34, leave out from beginning to end of line 2 on page 59

[Viscount Younger of Leckie]

My Lords, these three government amendments have the effect of removing new Section 47(2B) of the Health and Safety at Work etc Act 1974, and any references to it from Clause 61. New Section 47(2B) is a new regulation-making power. The effect of the power is to enable the Secretary of State to make regulations, subject to affirmative procedure, which make changes to the extent to which,

“other health and safety legislation”,

is actionable.

“Other health and safety legislation”,

is defined as,

“any provision of an enactment which relates to any matter relevant to any of the general purposes”,

of Part 1 of the 1974 Act.

The general purposes of the Health and Safety at Work etc Act include securing the health, safety and welfare of persons at work; protecting persons other than persons at work against risks to health or safety arising out of, or in connection with, the activities of persons at work; and controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances.

In its report published on 15 November 2012, the Delegated Powers and Regulatory Reform Committee, although content with the other regulation-making powers in Clause 61, was concerned that the power in Clause 47(2B) appeared to be very far-reaching, particularly since the purposes of the 1974 Act went beyond the health and safety of people at work. The committee considered that the power was inappropriate and recommended that the new power in Section 47(2B) should be removed from the Bill.

The Government have reflected on the comments of the Delegated Powers and Regulatory Reform Committee and, on further consideration, accept that it is not necessary to take such a wide power to amend other legislation as there are no current plans to extend the policy to other legislation. I am happy to say that we have therefore accepted the recommendation of the Committee. These three amendments give effect to that recommendation. I trust that noble Lords will support this improvement to the clause. I beg to move.

[Lord McKenzie of Luton]

My Lords, we are happy to support these amendments. They seek to remove a very extensive power which could draw a wide range of circumstances into the ambit of duties which cease to be actionable. As the Delegated Powers Committee put it, there is no discernible policy objective to the inclusion of the proposed new Section 47(2B). The scope could be incredibly wide: any provisions of any enactment which link to any matter relevant to any of the general purposes of the 1974 Act—that is the Health and Safety at Work etc. Act. The Delegated Powers Committee has pointed to just one example: the control and keeping of dangerous substances. It is therefore absolutely right that the Government have backed off on this; they are very wise to do so. It is illustrative of a dangerous desire to accumulate draconian powers, but I am pleased that the Government have stepped back from that on this occasion.

[Lord Deben]

I welcome this, and ask the Minister to carry back the message that it is extremely valuable for people to listen to the advice given by committees. He may be involved in the forthcoming Bill which is entirely incorrectly called the Growth and Infrastructure Bill, in which there are some very uncooked suggestions. It would be of great help to the Committee were he to give an assurance that he will do his best to make sure that the Government listen with the same care to some of the suggestions that come from other committees as they appear to have done on this occasion in listening to the specialist committee that has advised this particular action.

[Viscount Younger of Leckie]

First, I thank the noble Lord, Lord McKenzie, for his support in this respect. I also take note of the comments that have been made by my noble friend Lord Deben.

Amendment 28ZE agreed.

Amendments 28ZF and 28ZG

Moved by

[Viscount Younger of Leckie]

28ZF: Clause 61, page 59, line 5, leave out “, (2A) or (2B)” and insert “or (2A)”

28ZG: Clause 61, page 59, leave out lines 17 to 29

Amendments 28ZF and 28ZG agreed.

Debate on whether Clause 61 should stand part of the Bill.

[Baroness Turner of Camden]

My Lords, I have listened with interest to the exchange that we have just had, but it really does not make much difference to the way I feel generally about Clause 61. If the Health and Safety at Work etc. Act 1974 is amended in accordance with this clause, the laws relating to workplace health and safety could be returned to where they were almost a century ago. Since a landmark case, the law on claiming compensation for workplace injury where the employer has breached his statutory duty has been very clear. If this change is implemented, the law will return to being complex and uncertain. It will be more difficult and more risky for people who have been injured just because they went to work to claim proper redress. More meritorious cases will be lost, which means that the burden of caring for those injured workers will be borne by themselves, their families or the state, rather than by the wrongdoer. The litigation process will be more protracted and expensive, which is exactly what the Government are trying to avoid. The costs of bringing claims will inevitably increase, which means that there is every chance that insurers will increase premiums—something which I think that the Government are also anxious to avoid.

Currently, Section 47(2) of the Health and Safety at Work etc. Act states:

“Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”.

In practice, this means that if a worker is injured and he can prove that the employer has breached his statutory duty, he is entitled to claim compensation. This is the basis on which workplace injury claims are usually brought. The law on this is clear, it is well understood by all parties, and legal appeals in this field have been almost unheard of in recent years. It has also been the basis upon which health and safety legislation has been drafted and passed by Parliament, with a dual purpose of setting out the criminal law, and giving people injured as a result of breach of that law a right to compensation.

Without this legal provision, the injured person would be obliged to rely only on the law of negligence to claim compensation. However, the law of negligence is much more complex, as the burden of proof lies with the injured worker, when it is the employer who holds all the knowledge about the workplace systems, tools, procedures and so on. This means that much more evidence has to be gathered, more witnesses interviewed, and more documents provided if the case is to succeed. This is time consuming, and can be a very difficult situation in which to succeed, because the guilty employer holds all the cards.

17:30

A typical example has recently been provided to me by the Association of Personal Injury Lawyers, which of course deals with these cases. The example would be the case of an employee who is provided with special breathing equipment to enable him to work in a fume-filled environment. The equipment is faulty and the employee is fatally poisoned as a result. At the moment, the employee's family would have to prove only that there had been breaches of the statutory regulations in order to claim compensation. If the proposal in this clause goes ahead, however, the family would have to go much further and prove that the employer knew that the equipment was faulty.

Proving what the employer actually knows is incredibly difficult. It is certainly far more difficult than proving the fact that regulations put in place to protect the worker had been breached. If this clause is enacted, all workplace accident claims will be required to rely only on the law of negligence. According to the Government's own figures, this would affect at least 70,000 cases in England, Scotland and Wales.

As we know, the Government sought a review of health and safety at work law. I understand that a report has been produced. But the report recommended that there should be a review which would of course include a certain amount of consultation. To my knowledge, that sort of review has not taken place, instead of which we have Clause 61. In addition, at a time when Health and Safety Executive inspections are subject to swingeing cuts, this move is a charter for rogue employers simply to flout regulations in the double comfort of knowing that they are both unlikely to be prosecuted and that it will now be easier for them to avoid meeting their responsibilities to injured workers under civil law.

I understand that the Government have introduced this clause because they seem to believe that there are fraudulent claims. Perhaps they believe the kind of statements that are sometimes made in the trade press that we face a compensation culture in this country. Employers of course have to take out employers’ liability cover. Are insurance companies a soft touch? No one who really works for an insurance company, as I once did, could ever believe that. When I was young, I worked in the accident claims department of a large insurance company. We handled such claims. I always felt very sorry for the workers involved in accidents at work. They were often persuaded to settle for far less than their claim was worth because they were poor and they needed the money. I felt then that the workers needed representation and perhaps that is one of the reasons why I became a trade union official. I believe that they needed representation and they certainly were not getting it then.

This particular clause will make it much more difficult for individuals injured at work to get the right and fair level of compensation. For that reason, the TUC opposes this clause. It has to be understood that we now have the Health and Safety Executive and we now have healthy and safety at work legislation, to which we have made reference. This does at least give some protection to workers. I am sorry to learn that the Health and Safety Executive is facing cuts. It should not be: it should have more support rather than less.

For all these reasons I believe that the clause should be opposed. This is something that should not be in legislation before this House. People often work in very dangerous employment. If we are to support them and ensure that they get proper compensation, and their families get compensation if they are killed, really, this legislation must be heavily opposed.

[Baroness Brinton]

My Lords, there is a balance in these cases. I accept the points that the noble Baroness, Lady Turner of Camden, has made, but an issue has concerned me for some time about there being no defence for breach of duty for organisations that have done their absolute utmost to prevent an accident.

Let me give the Committee an illustration. An organisation with catering facilities for conferences has an extremely good record in public hygiene, effective written policies for staff at all levels and good training in management oversight of practices in its kitchens. A casual chef was employed from an agency. The chef was briefed that he was not to use raw egg in a mousse. He was given a written recipe to follow as well as the policy about why raw egg should not be used in such recipes. He disobeyed the order and, as a result, a conference delegate became seriously ill and had a miscarriage. That is a dreadful outcome from a single thoughtless incident by someone who was not even an employee but an agency worker not following instructions.

The lack of defence for the breach of duty legislation meant that the organisation itself was sued both civilly and criminally, but so were the people who had put in place the policies and monitoring, even though they had explicitly told this particular individual not to follow that course. As a result, individuals further up the organisation were extremely concerned that there was nothing further they could have done. Everything that the managing director, for example, had asked to happen had been carried out by those working beneath him. The organisation was rightly fined and compensation was rightly paid. However, the point is that there has to be some defence for breach of duty.

[Baroness Whitaker]

I apologise for interrupting so early in the noble Baroness’s speech, but it is important to say first of all that almost all provisions in the Health and Safety at Work etc. Act include the little phrase,

“so far as is reasonably practicable”.

Some have strict liability but there are very few. I hope that the noble Baroness will accept that, on the whole, lack of prior knowledge and lack of control does not mean that you will be judged to have committed a criminal act.

[Baroness Brinton]

I am grateful for the intervention by the noble Baroness, Lady Whitaker. Unfortunately, that was not true in this case. Only at the last minute were the managing director and someone else removed from the criminal action, which was helpful, but it was only after months of papers going between the Health and Safety Executive and others.

The point that I am trying to make is the one that I started with: there is a balance. I accept the undertaking that employees need to be protected, but there are occasions when there should be a defence for a breach of duty. I believe that new subsection (2D) in Clause 61 attempts to do that. The concerns that the Baroness has raised should be looked at and I hope that there will be some scope for the Minister to address them. But I would not want the record to show that concern was only one-sided. Certainly, some organisations do their utmost to make sure of something and they appear still to fall foul of legislation.

[Lord McKenzie of Luton]

My Lords, I added my name in support of my noble friend’s proposition that Clause 61 should not stand part of the Bill. Notwithstanding the Government’s amendments, which have removed what the Delegated Powers and Regulatory Reform Committee described as a power so far-reaching in its effects as to be inappropriate, what remains is a significant and unacceptable change in the law. It overturns what has been in place since 1898 as a result of the landmark decision Groves v Lord Wimborne. It will radically change the way that injured workers can claim compensation from their employers.

The clause was slipped into the Bill on Report in another place without prior consultation. The Government have claimed that it was the recommendation of Professor Ragnar Löfstedt in his independent review of health and safety legislation. But as my noble friend Lady Turner said, his report stated:

“I recommend that regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability”.

I have spoken with the professor, a distinguished academic, directly about this and he told me, as he would tell others, that his report speaks for itself on this matter. He recommended a review; he did not recommend what is included in Clause 61.

We have received a number of representations from authoritative bodies: the Personal Injuries Bar Association, the Association of Personal Injury Lawyers, the Bar Council, the Law Society, the Scottish TUC, the TUC, Thompsons Solicitors, UNISON and the NUT, to name but a few. They all have the same consistent message about the impact of this clause and the deep concerns it engenders.

The current position is clear. Regulations issued under the Health and Safety at Work etc. Act 1974 contain the vast majority of duties that the law imposes on employers to create and maintain safe workplaces. Some of these—a minority—impose a strict liability on employers, others a less strict liability. In the latter case, an employer will not be held to be in breach of a statutory duty if an accident could not have been foreseen or it was not reasonably practical to avoid it. Those situations fall outside strict liability. However, if a breach of duty is established, an employee is entitled to claim compensation.

Where strict liability applies, the employer is liable for injury caused without proof of fault or failure. As the Personal Injuries Bar Association points out, strict liability applies, for example, to the Provision and Use of Work Equipment Regulations. It is justified because the employee has no control over the selection, buying or maintaining of equipment, so the employer who provides it takes the risk if the equipment injures somebody and is defective. If it is not the employer in those circumstances, who will bear that risk, and where is the fairness if it is the employee? There is a separate issue of the employer being prosecuted by the HSE for committing a criminal offence although such prosecutions are few and far between.

However, Clause 61 does not deal just with strict liability. If enacted, it would remove all the opportunities for an injured employee to seek compensation from an employer for breach of statutory duty. Employers will no longer be liable in the civil courts for the offence of a breach of health and safety at work regulations, so, as my noble friend Lady Turner said, the only remedy available to the injured employee would be to prove that the employer was negligent. We are advised that this situation arises because Clause 61 would reverse the presumption in Section 47 of the Health and Safety at Work Act, with the consequence that no health and safety regulation would impose civil liability unless express provision was made for them to do so. The regulations carry no such provisions and, unless the Minister can tell us otherwise, there are no plans to introduce any. Will the Minister confirm that there are no such plans?

Will the Minister also confirm that Clause 61 therefore goes considerably further than the recommendation in the Löfstedt report, the most far-reaching consequence of which, and one which we could not support, would be the removal of strict liability from those regulations to which it applies?

Indeed, the impact assessment shows the Government declined to follow the recommendations of Löfstedt on the grounds that identifying strict liability duties is complex and would require amending a large number of regulations. However, the Personal Injuries Bar Association and others disagree with this and make clear that instances of strict liability are limited and it is imposed only where it is necessary to do so. Therefore, the Government’s justification for this draconian change is spurious. Can the Minister tell us how many regulations are considered subject to strict liability? Will he explain why the Government have chosen to overturn this long-established position and to do so without prior consultation? Why is it considered that to transfer the risk in no-fault situations from employers— more accurately, the providers of employer liability insurance—to employees, their families and/or the state is justified?

Clause 61 will also mean that the route to justice and compensation where the employer is culpable is far less certain. Because an injured worker’s course of action for breach of statutory duty is removed, the available remedy, as my noble friend has said, is to seek to prove negligence. However, the reality is that negligence and breach of statutory duty are not equivalent avenues to justice and compensation.

Indeed, the Government’s own impact assessment identifies that negligence is a more nebulous concept and more difficult to prove, with the burden of proof switching to the employee. The PIBA briefing on this matter explains this in some detail:

“In order to establish liability for negligence at common law, an injured person must establish: … The existence of a duty of care … The scope of the duty … Breach of the duty … That the breach caused injury … That the resulting injury was reasonably foreseeable”.

These are nebulous concepts indeed, to which even the Government refer in their evidence base.

17:45

The briefing goes on to say:

“The principal reason why an action for negligence will be more difficult to prove, as the government recognises, is the difficulty of proving breach of the duty of care … Common law duties are necessarily framed in broad terms (to provide a safe place of work, a safe system of work, safe plant and machinery) but in order to establish a breach of a common law duty it is necessary for the employee to adduce detailed evidence as to the reason why a particular workplace, system of work or item of machinery was not reasonably safe … The employee is at a significant disadvantage in attempting to adduce the necessary detailed evidence: the workplace, system, machine or equipment is not selected, maintained or controlled by them; they do not and cannot know whether a particular machine is appropriate for the task for which it is used or how often it should be serviced or replaced; they do not control the system or manner in which work tasks are carried out nor do they have the expertise to ascertain whether an alternative or better system of manner of working is appropriate”.

It continues:

“In order to prove breach of such duties it will often be necessary for an employee to obtain expensive expert engineering evidence and … then establishing breach of duty may be impossible if the employee’s expert cannot gain access to the workplace or equipment in question. For instance if, whilst the employee was in hospital, the equipment was repaired or replaced by the employer for business reasons, thereby destroying the evidence on which any such claim could be brought … It is this evidential unfairness that led to the imposition of civil liability on employers for breach of statutory duties whose very purpose was to promote and protect the safety of their employees … By their nature statutory duties are more detailed and specific than common law duties and set out detailed requirements on an employer for the purpose of protecting the safety of their employees. More importantly in an action for breach of statutory duty proof of compliance with that duty falls on the party charged with compliance, namely the employer”.

Is it not the reality that fewer negligence claims will be pursued, while those that are will be more costly and time-consuming for all concerned? The bottom line is that fewer injured employees will receive compensation. They, their families and indeed the state will pick up the consequences. Insurance companies will be the gainers. Justice will be denied. Let us bear in mind that the compensation is not some prize or bonus for an employee; it is compensation for injury suffered. Who among the injured would not prefer to have their lives back to what they were before the injury, rather than monetary compensation?

If this clause is allowed to stand, it will have profound and unacceptable consequences for thousands of employees injured at work but there are broader ramifications for our health and safety system. It will be a signal to bad employers that they have a better chance of getting away with poor health and safety provision, reinforcing the recent restrictions on the Health and Safety Executive’s budget and the curtailment of proactive inspections. I support my noble friend Lady Turner’s amendment.

[Baroness Donaghy]

My Lords, I declare an interest as the author of a report in 2009 to the then Secretary of State for Work and Pensions on the underlying causes of construction fatal accidents.

My first question is to ask the Minister why this clause was inserted into the Bill at Report on 16 October last year without proper scrutiny. The clause will not take away an employer’s obligation to take health and safety seriously. It will simply make it virtually impossible for a worker who is injured or whose family breadwinner is deceased to go through the complex and uncertain process of claiming compensation. It is a charter for rogue employers to avoid their obligations. Make no mistake about it: if a cowboy is not afraid of sanctions he will carry on behaving like a cowboy. The government Amendment 28ZE was an attempt to head us off at the pass and does not deal with the fundamental change which is being proposed.

As the All-Party Parliamentary Group on Occupational Safety and Health has said:

“Since 1898 the law on claiming compensation for work-place injury, where the employer has breached their statutory duty, has been very clear. This change will not only put the clock back over 100 years, it will create considerable legal uncertainty”.

Strict liability was introduced over a century ago for good reason—to recognise that there was a different balance of power between employee and employers. It would be entirely unfair and most likely impossible to expect an injured employee to be able to show that their employer had not taken reasonable care leading to injury from defective or hazardous equipment. Such duties have helped to prevent future workplace deaths and injury. This is particularly the case on a building site, where the majority of people are sub-contractors and/or self-employed. If the principal contractor were not strictly liable, there would be even greater carnage in the construction industry.

The amendment will not reduce compliance costs for the prudent employer but bizarrely may well have the unintended impact of benefiting the unscrupulous employer. Breaches of workplace regulations are currently almost invariably currently enforced through civil claims procedures, as has been said. Due to limited resources, the Health and Safety Executive is able to prosecute only 0.1%, if that, of breaches and health and safety law. This clause should be removed from the Bill on the basis that the Government should review and consult on the issues of strict liability in an open and transparent manner, inviting submissions from all affected parties.

I am also concerned that the good work carried out by Professor Ragnar Löfstedt has been prayed in aid for this shoddy piece of work. We all know the phrase, “if you give an inch they will take a mile”. In this case Löfstedt recommended that regulatory provisions that impose strict liability should be reviewed by June 2013. He took the view that regulation should be qualified with “reasonably practicable” where strict liability is not absolutely necessary, or amended to prevent civil liability from attaching to a breach of those provisions. He did not recommend a blanket removal of strict liability from health and safety law. The review that he recommended does not seem to have been conducted beyond a simple impact assessment by officials. There was no consultation on the proposals before they were introduced in Clause 61.

As the noble Baroness, Lady Whitaker, has said, health and safety regulation has always contained a balance between different types of obligation, including a majority qualified by “reasonably practicable”, as well as some that are strict. This balance has existed since the Factories Act 1937 and been considered to represent a fair balance. Although “reasonable practicability” has been the main driver for health and safety regulation it has always contained a balance between different approaches to liability.

With some regulations, if a worker is injured and can prove that the employer has breached their statutory duty, the worker is entitled to claim compensation. This is the basis on which health and safety legislation has been introduced by Parliament, with the twin aim of setting out the criminal law and giving people who have been injured as a result of breach of that law a right to compensation. Without this legal provision the injured person would be obliged to rely only on the law of negligence to claim compensation. It is unclear territory. More importantly, cost moves from the employer to the worker.

As I have said, the amendment will not change the fact that the employer will have broken the criminal law. They will still be liable to prosecution in court. All that changes is that the victim will now be denied the right to compensation. The All-Party Parliamentary Group on Occupational Safety and Health is very concerned that this will have a negative effect on preventing injuries in the workplace, as compensation claims have always helped to drive forward improvements to help to ensure that such incidents are not repeated.

Let me turn to the transient nature of the construction industry, where the majority of workers are self-employed—either genuine or bogus self-employed. In London and the south-east it is about 90%. This adds risk to the industry because the self-employed can never be genuine apprentices nor could they take on the role of safety representatives. Some claim that under-reporting of accidents is because the self-employed tend not to report them as they do not receive benefits. The cost of any permanent injury to a self-employed person is probably met by the state and some claimed that they were less likely to report unsafe practices because they wanted a job next Monday. In other words, they were less secure in their employment.

I met a number of families of workers who had been killed on construction sites. Their dignity was impressive and their proposals were centred on future prevention rather than vengeance or compensation. Let me quote two of them: “I brought up my son to be law-abiding. You go to work for the things that you want. They were killed by someone more interested in money. People think that they are safe at work. Sometimes I would have to get him up at 4.30 am”. Another person said, “Everyone was responsible for every bit of the site except the bit my husband was on. I am sure responsibility would have moved if it had been a different part of the site; 350 men have died since my husband died. In any other profession there would have been an outcry.”

I firmly believe that this legislation keeps people alive on building sites. I equally believe that it is not strong enough and yet the Government are attempting to weaken it. One young woman, Jennifer Deeney, lost her husband Kieron after only five months of marriage. The employer accepted liability and so it was only a question of compensation. It took five years for the case to be heard at the Old Bailey. I was privileged to attend the hearing, at the end of a long process, where some justice was done. There were delays at the coroner's office and obstruction from solicitors acting for the employer. The judge in the case said,

“Somebody needs to address these long delays … In essence it is not a complex case”.

I wish we could find a better procedure.

If it took five years to settle this case, which was not complex and where the employer had accepted liability, imagine the impact of having to go through an initial process of proving negligence. This will be a green light to some employers to further evade their responsibilities. At the time of my report, around 50 construction workers died on-site each year, not counting the injured and not counting the 20 tradesmen, electricians and plumbers, and so on, who die every week from asbestos-related disease. A further 12 construction workers die every week from silica-related lung cancer and will continue to do so over the next 40 years unless we increase our health and safety vigilance and not downgrade it.

There was no sense of shock at the regular toll of fatalities in the industry. This clause shows that the Government are not shocked either. I should like to ask the Minister what assessment the Government have made about the impact of amending Section 47 of the Health and Safety at Work etc Act on the ability of an employee to enforce a civil claim for workplace injury. I should also like to ask: will the Government commit to look again at the impact of the Bill on health and safety at work practices to ensure that we are delivering maximum protection for employees?

To conclude, this is not a debate about the compensation culture. It could be a matter of life and death. If strict liability is taken away, it will not be just a few workers affected in terms of compensation; it will affect whole industries, which will take it as a signal to relax vigilance.

Jennifer Deeney did not just collect her compensation for losing Kieron and move on; she has campaigned ever since for improved safety on sites. She was also selected as one of the torchbearers in the lead up to the Olympic Games. I hope that the debate that she is now witnessing will show that her efforts have not been in vain.

18:00

[Lord Browne of Ladyton]

My Lords, I draw the Committee’s attention to my entry in the Register of Members’ Interests. I am a non-practising member of the Faculty of Advocates of Scotland. I have not practised for in excess of 15 years and I have no pecuniary interest in this piece of legislation. However, I have some knowledge of the application of the duties imposed by the Health and Safety at Work etc. Act 1974 and regulations made thereunder. I support the question in the name of my noble friend Lady Turner for many reasons, most of which have already been articulated.

My noble friends have produced valid arguments about the effect of the Government’s proposed change to the Health at Safety at Work etc. Act. It will shift the burden of proof in a significant number of cases following almost a century of struggle to establish a fair division of the burden under the law. As we have heard, it will—I may come back to this in a moment and pose some specific questions to the Minister—in future shift the burden of supporting many people who are injured in accidents at work from the private insurance industry and compulsory employer’s liability insurance on to the state. That seems to me significantly at odds with the Government’s overall ambition in relation to where the burden of costs should lie in the long term in relation to the public and private sectors.

Given my own practice and the information that many of us have obtained from those who still practise in this area, I believe that the measure will have a significant effect on the complexity that faces anybody who is injured in many accidents at work in the future. I think that the actual numbers are in dispute, but I will come back to the specific figures that have instructed this change. I understand from the Government that the relevant figure is 20,000 cases but I have no idea where that figure came from. As the Minister will realise in a moment when I draw his attention to some of his own publications, the Health and Safety Executive also has no idea how many cases this measure will affect but it will certainly shift a burden of complexity on to people. It will result in much more complex cases coming before the courts.

The information we have been given from the Association of Personal Injury Lawyers indicates that the measure will affect many thousands of cases, which will put a significant burden on the courts. We are already aware of the challenges faced by the courts in delivering public services and the delays that are being incurred. As I say, all the arguments that have been made are valid and I do not intend to repeat them. I certainly do not intend to repeat the argument made so effectively by my noble friend Lady Donaghy who mentioned the terrible circumstances in which people may be left, with no opportunity for redress in terms of placing the responsibility for compensation where it ought to lie following the sort of accidents that routinely happen in our workplaces.

The noble Baroness, Lady Brinton, is absolutely right: there needs to be a balance. However, with respect to her, I am not sure that the case that she brought to our attention had anything to do with the Health and Safety at Work etc. Act 1974. I am not sure that the individual case was exactly relevant, but that was not the point that she was making; her point was that there needs to be a balance. I agree with her, and would argue that, broadly, the balance is struck in the right place in relation to health and safety at work legislation between those duties that lie on employers for which the principle of reasonable practicability applies and those duties where there is strict liability.

The reason why it lies broadly in the right place is that this area of law has developed over a century. The HSE and all those who have worked in this area over that century have a real sense of where that balance should lie, broadly. It is not that difficult to explain why it is necessary. As my noble friend Lady Donaghy made clear, the relationship between employers and employees is not one of parity. There are very few workplaces where employees can say, “I’m worried about that machine and I’m not going to use it”, or alternatively, “I’m not going to use this piece of equipment you’ve given me, or these materials”. That is not how workplaces work; they work, normally, on the basis that people have an assurance that their employers will comply with the law and, if they are asking them to do inherently dangerous things, there will be a strict liability on them and the employer will carry the can if it goes wrong—maybe criminally, but certainly in terms of civil liability. Because that may be an unfair burden on an individual employer, we pool the responsibility. All employers accept all these responsibilities, and we have a principle called employers’ liability compulsory insurance. It is compulsory; you have to insure yourself for millions of pounds in possible liability to your employee. So we share the burden across society by that process.

Interestingly, over the years of employers’ liability compulsory insurance, the information that the HSE has published indicates that in 2010 it cost in total about £800 million, out of about £30 billion of general insurance in this country. So it is a comparatively small amount of money and the insurance industry has never made any money out of it. In fact, when I was Minister for Employment in 2004, it was in crisis, because the industry sought to do something with it that it had not done for some time and disaggregate it from the package of insurance that it was selling employers. The industry discovered that it was not making any money and that it was a loss leader. But it made a lot of money off the rest of the insurance, so they sell employers’ packages.

There is no reason to believe that from the point of view of any one individual employer the shifting of this burden from strict liability to reasonable practicability will make a jot of difference to any individual employer in terms of the regulatory burden of having to pay his insurance premium. It will not go down, because he is already getting it for less than it costs the industry. So we will not reduce regulation in any way by shifting this burden. All that we will do is shift the cost of the consequences of these accidents from that part of the market on to the public purse, which will have another consequence for the Government. I am sure that they have thought about it and that the Minister will be able to tell us his assessment of it.

At the moment, we have a set of laws in this country that mean that if you have an accident and you become a burden on the public purse for a period and then settle the claim, you have to pay back the benefits. So we have a Compensation Recovery Unit. In the last year for which there are statistics, 2011-12, the unit recovered £75,245,271.28 from accidents involving employer-employee relationships. In total, it recovered about £138 million, and some of those may also have been health and safety at work claims. But somewhere between £75 million and £138 million is being recovered by the Government from compensation that is paid because of health and safety at work claims. How much of this will now not be recovered because the claim cannot be made? Apart from the possible burden on the National Health Service and on local authorities in caring long-term for people who are injured, how much will that cost? How much of the Compensation Recovery Unit’s £75 million to £130 million a year will not be recovered by the Government because of this change. What estimate did they make of that?

Another point is: why are the Government doing this? We are given different arguments. One of them is that there is a compensation culture. I have made some references already to what the Health and Safety Executive has said about these changes but I draw your Lordships’ attention to the document I have in my hand, which is an impact assessment, Strict Liability in Health and Safety at Work Legislation. It is by the Health and Safety Executive itself. I assume that this document, which I got from the net, was presented to Ministers in the process of their assessment as to whether they should proceed with this change. It is not clear whether it was, because it is not signed or dated by the responsible Minister where it should be, but at the top it is dated 11 June 2012. It is a very instructive document because it goes through and assesses, in some detail, not only all the arguments for this possible change but all its potential consequences and tries to estimate them. It fails in every single regard.

I will read just one paragraph for the erudition of the Committee to make my point. It is paragraph 34, which is very germane. The Health and Safety Executive said:

“We assume in the absence of robust evidence that the existence of strict liability duties may contribute towards any over-compliance that exists as a result of the general perception of a ‘compensation culture’. We are however also aware that the network of influences on attitudes and behaviour towards risk is complex”.

In that one sentence, it shoots the feet from the only argument that the Government have to date put into the public domain as to why this is necessary. It is not that there is a compensation culture, because the Health and Safety Executive says in the introductory paragraphs of this report to the Government—and it is the Government’s agency—that it is not clear whether this actual culture exists. Paragraph 2 says:

“The ‘compensation culture’ (or the perception of it) in the UK has been the subject of several reviews over the last few years, but no clear evidence has been presented for its existence”,

so it kicks into touch the idea of a compensation culture and then says that it is a perception of that culture that is the argument.

As I understand it, the argument from Professor Löfstedt, which the Government have adopted, is, first, that even if there is not a compensation culture there is a perception among some employers out there that there is. They are overcomplying in relation to health and safety legislation, where there is strict liability, because they are concerned about the possibility of a compensation culture that they think exists. We are starting off on the basis that there is no proper evidence for the fundamental underpinning of this argument in the first place—at least, there is none that the Health and Safety Executive can find in the almost 40 pages of its impact assessment report to Ministers.

Secondly, if the problem is that some employers, particularly those whom Professor Löfstedt spoke to, have a perception that there is such a culture and that that is affecting the way they behave, the answer is to educate them. Of course, that is part of what Professor Löfstedt recommended. What is conspicuous by its absence in response to Professor Löfstedt’s report is a serious programme of educating employers not to be afraid of a compensation culture, which apparently does not exist, but to apply the law in the way in which they ought to.

What is the consequence of this? It is that Professor Löfstedt says, “There is a perception of a problem here”, and that if the problem is right we need—

18:15

Sitting suspended for a Division in the House.

18:30

[Lord Browne of Ladyton]

My Lords, I was at the point in my argument where I was making the case for the basis for this change in the law being a perception of a set of circumstances which the Health and Safety Executive argues does not exist, or at least, if it does, there is no evidence that it exists. In order to reinforce this point, I refer the Minister to the Compensation Recovery Unit statistics, which he will find in the performance statistics on the DWP’s website. They show that, in relation to health and safety law, there is no compensation culture in the sense of an acceleration of claims by employees against employers. There has been an increase in claims for which benefits have been recovered, but they appear more to be motor accident claims, and there has been an increase in clinical negligence claims but claims under the employer category have gone down. Settlements recorded by the Compensation Recovery Unit have gone down from 215,000 in 2006-07 to 89,000 in 2012-12. So there are fewer than half of the claims that there were only five or six years ago. The number of cases registered by the Compensation Recovery Unit have gone from about 198,000 to 87,000 in the same period. If anything the trend is significantly down—not marginally—in relation to claims of this nature. There is no statistical evidence or other evidence that there is such a thing as a compensation culture out there in relation to health and safety at work.

Indeed, the contrary is the case, as my noble friend Lady Donaghy has made clear and as was alluded to by my noble friends. In fact, the civil process polices the health and safety at work regime because, for the very small number of cases that are prosecuted in the criminal courts as regards those accidents that happen in the workplace, the regime is policed and enforced by the ability of individuals to be able to claim against their employers. That is another shift that I suggest will happen. If this strict liability is removed, there will be significantly greater pressure on the Health and Safety Executive to prosecute cases in the criminal courts because people will demand some answer to what happened to their relatives who were either killed or injured at work. We see that in almost every other area of public life: a demand for an investigation, a trial or some form of proof. That will increase if we lose the ability for the civil courts to be able to police the health and safety legislative structure.

When Professor Löfstedt looked at this, he drew our attention to something that is very important: that we may not have precisely got the balance between reasonable foreseeability and strict liability absolutely right. Under the 1974 Act, we now have a regime in which, when regulations are made, they are strict liability regulations, unless the contrary is stated. I accept that maybe that has allowed some regulations to slip under the wire and we may have failed the test of the noble Baroness, Lady Brinton, to get the balance at precisely the right place. This is why the good professor made his recommendation that we review those regulations of strict liability. They are either in the tens, or at the very most 200; the Health and Safety Executive’s impact assessment which I referred to earlier suggests that there about 200 of them. If it is as many as 200, is that really too much of a burden for accepting the implication of the first part of his recommendation? That is, that between publication of the professor’s report and June 2013, the Government look at each regulation and see whether it was appropriate for a duty to carry the burden of strict liability, or whether we could appropriately apply reasonable forseeability to it, and therefore provide a form of defence for an employer.

The Government decided without any review, further discussion or consultation, that faced with the two options —one being to look at each of these either 20 or 200 regulations, depending on who you believe, and to decide how many of them needed still to be strict liability—they would take strict liability away from them all. They did this because it was perceived to be easier, but also because this process was all in the health and safety challenge, aptly named staff chamber process. This is apparently a process for deregulation set up by the Government in order to minimise the level of consultation on deregulation and to accelerate beyond the point of the early review to the point of decision and change. That is the answer to the questions of my noble friend Lord McKenzie of Luton about why the Government did not, after apparently accepting the professor’s recommendation, implement it. They were fixed on this staff chamber process.

I would like to be able to share with members of this Committee what really happened, but I cannot find out. Despite the fact that one can go on to the Cabinet Office’s website and click on “Health and Safety Challenge Starts Here”, “The Process, and “How it Works”, when one later clicks on something that says “Health and Safety”, it says that this consultation is now over and Professor Löfstedt has reported. It goes on to cover some other stuff that is ongoing, none of which is of any relevance to any of this. It does not say, in these circumstances of open government, what the Government actually did during the period between apparently accepting Professor Löfstedt’s review recommendation and deciding that they were not going to have what anybody else would call a review, but were just going to jump on to one of two possible alternative solutions to this problem that he suggested existed. That solution was the draconian measure of in the future taking away from a significant number of people the right to any compensation when injured at work through absolutely no fault of their own, and probably because they had been asked to do something inherently dangerous by an employer who is already insured for it and is already paying the insurance.

Candidly, I do not understand why after 100 years of progress, we are now in this situation following months of no proper discussion or consultation. I suggest that apart from a very small number, most people in this country have no idea of the significant effects that this change could have on their working circumstances. It may be inappropriate to do this, but I asked somebody from the House of Lords Library to research this for me. He immediately said that this will have an effect on our working circumstances, and that he had been unaware of this. He is absolutely right. Almost everybody who is in a working environment could be affected by this. If this law goes through and you are asked to work a dangerous and complicated piece of machinery, which probably your employer does not understand properly, and it goes wrong because of some latent defect that nobody could reasonably have foreseen, you will have been put in an inherently dangerous position and, if you are left with a life-changing disability, you could be in the position of not being able to get any compensation. I do not want to be responsible for that sort of change in the law and I venture to suggest that not one Member of the House wants to be responsible for that sort of change in the law, so why is this being pushed through in this way?

If there is a legitimate issue—a question of restriking the balance—why do we not work together in an open and transparent fashion to move the balance to the appropriate point, releasing employers from any quantifiable burden so that they can get to this great new world in which they will create lots more jobs because they do not have strict liability in relation to some of their employees? Why do we not work together to achieve that, because we all agree with those objectives?

I could make many other arguments, but I am conscious that I have spoken for too long. This Health and Safety Executive impact assessment is a veritable mine of arguments against this legislation. I recommend it to the Minister. I am certain that we will return to this issue on Report and I suggest to him that there is a way forward.

I have a series of questions, some of which may already have been asked, but the Minister needs to be able to answer them. One of them is: what is the evidence base for this change? It is not apparent in the impact assessment, so what is the actual evidence base? The question is not what the perception is; it is what the evidence is. What assessment have the Government made about the number of claims that will be affected? Is it a comparatively small number or is it a substantial number, as we are told by the Association of Personal Injury Lawyers? Are the Government in exactly the same position as the Health and Safety Executive in saying, “We haven’t a clue and we do not know; in preparing the impact assessment, unless we put a disproportionate amount of work into it, we have no way of working out how many claims are affected by this change in the law”?

What is the Government’s assessment of the cost of shifting the burden to the NHS and local authorities, as well as the loss of money for cover by the Compensation Recovery Unit? What is the Government’s assessment of the effect that this will have on employers’ liability compulsory insurance, if any at all? My view is that it will have none, so to that extent it will not reduce the burden or the regulation on employers. If the Government believe that it will reduce premiums that are already not covering the claims, what is the argument for that? Are there employers out there who believe that their insurance premiums will go down if they live in this brave new world? If they do, they are kidding themselves.

All these questions need to be answered but, much more important, the Government need to go back to Professor Löfstedt’s report and say, “There are two alternatives here. We could take a scalpel to this and we could identify and change the regulations that are inappropriate for strict liability, thereby creating the assurance and certainty that employers need to be able to move into this world of deregulation that apparently they told Professor Löfstedt they wanted. Alternatively, we could just take it away from everybody”. What is the argument for taking it away from everybody when it means taking it away from sets of circumstances in which that is an entirely inappropriate thing to do and where it will create massive injustice, as my noble friends have made clear? What is the argument for that? I say with respect to the noble Lord, who I know will try to answer these questions, that if he cannot answer them he is not entitled to change the law in this way.

18:45

[Lord Monks]

My Lords, I rise to support the question put by the noble Baroness, Lady Turner, and to follow some powerful speeches that have been made in support of it. I declare an interest. I am a non-executive director of Thompsons, probably the most prominent trade union firm of solicitors.

The Government cannot be accused of inconsistency when it comes to rights at work. I see Clause 61 in a wider context: namely, that the direction of travel which the coalition has adopted is pretty clear. It is to keep chipping away in the name of deregulation at a range of rights, some more fundamental than others. When the opportunity comes along to chip away a bit more, it is taken. The Bill enabled this late amendment to be added. It can be seen in the context of raising qualifying periods and other obstacles to justice, changing the personal injuries area, without touching road traffic accidents, which is the major problem area of a compensation culture, and generally moving to disadvantage the already vulnerable. It is a kind of convoy and Clause 61 is one ship in the convoy.

For those of us who have spent most of our lives working to advance good relationships and security at work, and particularly to make sure that health and safety is of the best possible standard, Clause 61 is disappointing and frustrating. Of course, for the victims it is much worse than that. Clause 61 removes the ability of an employee to enforce a civil claim for workplace injury on the grounds of workplace regulations. I hope that we can take advantage of what my noble friend Lord Browne said, and pause and have a better look at this. If this change is enacted, the employee would have to rely on the common law doctrine of negligence to enforce a civil claim, but it is not always about negligence. The noble Baroness, Lady Brinton, picked an example where negligence did not come into it, certainly on the part of the employer, even if it was not quite in the mainstream of the Health and Safety at Work etc Act. As she said and as others have repeated, health and safety legislation is always looking for a balance between different types of obligation. In my long trade union career I have not met too many employers who are totally blameless, but I will accept the suggestion that there are some.

Before today’s discussion I did some research on this issue. In this House in 1969 Lord Morris of Kenwood introduced some regulations on protecting machinery. I summarise what he said, “If both parties are innocent and neither is to blame, who should bear the loss?”. The reality is that the legislation up until Clause 61 has favoured putting the liability on the employer. He has more resources. As the noble Lord, Lord Browne, powerfully pointed out, he also has insurance. The principle is a mutual one which means that the insurance payment does not go up very much if, because of the mutual process of sharing the burdens, a pay-out has to be made by the insurance company.

However, an employee has no such resources to fall back on and removing strict liability at civil law makes the process that much harder. Removing strict liability does not remove unfairness; it merely shifts it on to the most vulnerable. I worry, too, about the cultural signal that this clause sends out. It is basically saying, “Health and safety is a bit overregulated. You do not have to take it quite so seriously as you did before. We are removing one bit of liability and if you are not negligent you might get away with this in future”. It is the wrong kind of signal. It is a signal that bad practices will be encouraged rather than good practices; that health and safety is not quite such a central feature of business culture as it is in many places, I acknowledge, and should be in all places.

I am proud of the United Kingdom's record on health and safety. If you look at the comparison with similar countries in the European Union, whether on skills, productivity or a range of other issues, we are not at the top of the league. We are at mid-table in most areas. But in health and safety we are at the top of the league. This is an area of excellence and many of the EU directives on health and safety have been the British Government's diplomacy spreading good practice through some countries that have some pretty ropey practices in this area. It is an area of excellence and our regulations, plus the fact that they enjoyed support on a wide basis, have laid the basis of a good record. It is not as good as we would have liked: there are still too many people killed, as has been recited today. There are too many people being injured and whose lives are wrecked, but this is an area of comparative excellence.

I ask the Government to think again and pause. They should have a look at this before Report. I have one question to add to those that have already been asked. In the impact assessment, there was no mention of the applicability of the European framework directive on health and safety. If an injured worker has no redress outside the negligence area, some legal opinion is already beginning to form that says that they can exercise the right under the European directive against the Government. In other words, they cannot take action against the employer so they will take it against someone else. Will the Minister comment on that particular expression and view? Generally speaking, this is a clause that goes in the wrong direction and I hope that while there is still time we can turn back in the right direction.

[Baroness Whitaker]

My Lords, as a former head of bits of HSE policy, I want to say that this clause undermines the main concept behind the Health and Safety at Work etc. Act to make it clearly enforceable that employers should not with impunity be so recklessly negligent as to imperil life, limb or health if they can help it—that is part of the Act, too. Clause 61, as has been said, does not minimise the potential criminality of this behaviour, but it prevents anyone using a proven breach with any degree of liability as grounds for compensation. Injured employees must fall back, as my noble friends have said, on the common law duty of care, which is very hard to prove.

Recalling the debates over the Health and Safety at Work etc. Act when it was passed—and it received all-party support—Section 47 was put into the Act for this exact reason: so that the workforce could have something effective and tangible if they were severely injured, not just the knowledge of a successful prosecution in which they were a passive witness.

Section 47 was widely consulted on. I would like to ask the Minister the response of the Governments of Scotland, Wales and Northern Ireland to this provision, Clause 61. Can he confirm that they were consulted?

Finally, there is a potential increase in National Health Service costs from this clause because costs are clawed back from the employer if there is compensation and they will not be if there is none. Does the Minister agree? I fear that the Government will be going backwards in their understanding of workplace risks, let alone in recognition of justice for injured work people if the provision goes forward in this form.

[Lord Young of Norwood Green]

My Lords, we support the question on clause stand part from my noble friend Lady Turner, and I am not going to repeat all the abundance of evidence as to why we should adopt this view, because it has been amply demonstrated by the majority of speakers, apart from the noble Baroness, Lady Brinton, who made an appeal for balance. We would support that, but the balance that the Government propose is certainly, in our view, in the wrong direction.

In excess of 20 specific sets of regulations have been introduced under powers given to the Secretary of State by the Health and Safety at Work etc. Act 1974. They include regulations relating to work equipment, personal protective equipment, manual handling, hazardous substances, construction, offshore installation, railways, young workers, and working at height and in confined spaces. Collectively, these regulations are the basis of workers’ rights to a safe working environment in the UK, as they contain the vast majority of duties that the law imposes on employers to create and maintain safe workplaces.

As a number of my noble friends pointed out, there is no evidence to show that there is overcompliance. There are perceptions, maybe, but is that really how we should frame legislation, based on perception with a lack of evidence? If only there was a culture of overcompliance, we would have less to complain about. There would be no situation with the number of deaths and serious injuries that still take place throughout British industry. Far too often we see examples of employers failing to comply or adopting the wrong attitude towards health and safety. Again, as a number of my noble friends have pointed out, this legislation would give them entirely the wrong signal.

Some of the regulations contain duties that impose a strict liability on employers. I am not sure where my noble friend Lord Browne got the figure of 200; I have a slightly lower figure than that. But it is something that the Government could cope with if they wanted to carry out the recommendations of the Löfstedt report. Others contain duties that are less strict in relation to which an employer shall not be held to be in breach of their duty if it is shown that they could not have foreseen the accident, if the accident could not practically have been avoided or if it is not reasonably practical to avoid the incident. Currently, if an employer breaches any health and safety regulation, there are two possible consequences; the employer can be prosecuted as having committed a criminal offence by the HSE, or the injured worker will be entitled to compensation. The declared intention of Clause 61 is to remove strict liability from the body of health and safety legislation. The genesis of removing that strict liability is found in the Löfstedt report. If only the Government had stuck to that, we might not be in that situation. But Löfstedt did not positively recommend that as the only course of action; it was only one possible option among others, and his firm recommendation was that a further, thorough investigation be undertaken—something that this Government have signally avoided. They have not followed the recommendation to carry out further research and have instead leapt straight into introducing legislation.

With Clause 61 introduced as an amendment, there has been no public consultation. As currently drafted, the clause does not simply remove strict liability; it goes much further than that. There is a fundamental disconnection between the declared intention of Clause 61 and the legislative impact that it will have. On the two consequences that currently exist when an employer breaches a health and safety regulation, the impact of Clause 61 is that one of those consequences shall be removed from the law altogether. Given the very small number of criminal prosecutions brought under the health and safety regulations each year, the consequence being removed by Clause 61 is the most important one in ensuring not only that justice is served but that workplace safety is maintained. The effect of the clause is to withdraw the right of injured workers when claiming compensation to rely on a breach of the statutory duty imposed on the employer in regulations made under the Health and Safety at Work etc. Act 1974. The statutory duty on the employer to comply with the regulations will remain; the clause does not remove a single regulation from the statute book. The employer will remain liable to prosecution for the breach of any regulation in the criminal courts. It is only injured employees who the regulations are designed to protect for whom it will no longer be relevant. As we have heard, according to statistics published by the Health and Safety Executive, only 0.5% of reported workplace injuries result in a criminal prosecution. The prospect of prosecution provides no incentive to employers to comply with their duties. Our concern is that this measure will give the opposite signal.

Employers are obliged by law to maintain insurance to meet claims for damages arising from workplace injuries. Claims against employers are dealt with and paid by insurers. This clause will make no change to this system but, as has been pointed out by a number of my noble friends, the costs are likely to fall on the Government and, in effect, the taxpayer. What on earth is the value of that?

If the clause passes into law, no legislative burden will be removed from any employer. With no saving to the public purse, the Government will remain liable for civil claims deriving from European directives in respect of injuries to their own workers and will also still have to pay benefits to injured workers which they may no longer recover from employers’ insurance.

A number of detailed and valuable points have been made by my noble friends Lady Donaghy, Lord Browne, Lady Turner and Lord McKenzie. A number of questions were posed to the Minister which I look forward to him answering: for example, what is the evidence base for the measure? How many claims will be affected? What is the cost of shifting the burden on to the NHS and government? Will it reduce the cost burden on employers? That is unlikely in our view. As I say, I look forward to hearing the Minister’s response.

19:00

[Viscount Younger of Leckie]

My Lords, I have listened very carefully to the debate this afternoon. I understand the concerns of noble Lords about the importance of protecting people at work from risks to their safety and long-term health so eloquently put forward by the noble Baroness, Lady Turner, and the noble Lord, Lord McKenzie, and, indeed, by the noble Lord, Lord Browne, in an impassioned and extensive speech. If noble Lords will bear with me, there is much to say in response to the many views and concerns expressed.

First, I reassure noble Lords that the purpose of this clause is not to weaken or reduce the existing protections for employees. It is about helping to increase the confidence of responsible employers to continue to do the right things to protect their employees. I stress emphatically that the law, which sets out the standards that employers must meet and the duties which employers must perform, including in relation to self-employed contractors on construction sites, is not affected by this proposal and is not changing. The Health and Safety Executive will continue to investigate serious incidents and complaints about poor practice and will take enforcement action, including, where appropriate, prosecutions, against those employers who fail to meet their responsibilities in line with the executive’s established policies and procedures, so let me explain why it is appropriate to take action.

We all recognise that the world has changed since 1974, when the Health and Safety at Work etc. Act was introduced to replace large numbers of detailed regulations with a proportionate risk-based approach to health and safety. Indeed, the late Lord Robens, on whose recommendations the 1974 Act was based, noted,

“that the sheer mass of this law, far from advancing the cause of health and safety, may well have reached a point where it becomes counterproductive”.

Clearly, every death and serious injury is a tragedy that should not happen. The noble Baroness, Lady Donaghy, referred to this earlier in Committee and has spoken about it again today. However, considerable progress has been made in reducing the incidence of injury and ill health. I listened carefully to the heartbreaking stories of those who have been killed or injured, as outlined in the speech of the noble Baroness, Lady Donaghy. Each one represents a tragic human story for individuals and for their relations.

Progress has been illustrated by the successful delivery of the Olympic Games, where there were no work-related fatalities on the whole of the London 2012 construction programme. This is the first time that any host nation has achieved that. The noble Baroness, Lady Donaghy, specifically raised the issue of construction sites. The substantive law that sets out the duties and responsibilities on employers, and to whom these are owed, including to self-employed subcontractors on construction sites, will not change. Therefore, the ability for such workers to bring a claim for negligence will also remain the same as now. Anyone who directly employs or engages construction workers or controls or manages construction work is a contractor for the purposes of the construction regulations. The duties on contractors apply whether the workers are employees or self-employed or agency workers. There is no distinction.

We are committed to the continued improvement of health and safety standards at work and to building on the progress made to date. The effectiveness of the health and safety regulatory framework has more recently been thoroughly examined by my noble friend Lord Young of Graffham in his report Common Sense, Common Safety.

[Baroness Whitaker]

Will the noble Lord confirm that the noble Lord, Lord Young, did not touch on the matter of Clause 61 in his report?

[Viscount Younger of Leckie]

I would need to refer back to the report to give the noble Baroness a full answer. Indeed I shall do so.

The effectiveness of the health and safety regulatory framework has also been highlighted by Professor Löfstedt, as has been mentioned today by several noble Lords, in his independent review, Reclaiming Health and Safety for All. Both my noble friend Lord Young of Graffham, whose report received much support across the House when it was debated, and Professor Löfstedt found that there is no case for fundamental change of the health and safety framework itself and that the existing regulatory requirements are broadly right. In fact, the biggest problem today is the way in which the regulatory requirements are interpreted and applied.

No one can be complacent. If we are to build on the steady progress made, we need to take action to tackle the current myths about health and safety, myths which the Health and Safety Executive see as such a problem that it has set up the Myth Busters Challenge Panel to provide a mechanism so that anyone who receives advice in the name of health and safety which they believe is disproportionate or inaccurate can challenge that advice.

Businesses consistently report that these myths lead to confusion about what the law actually requires and a fear of being sued, which, in turn, drives employers to overimplement the law in an effort to protect themselves and indeed discourages them from expanding their business. This in turn reinforces the perception that the application of health and safety law is unduly burdensome. I shall have more to add to that later.

This situation results in responsible employers taking an overly cautious approach, which has a detrimental effect on their approach to controlling risks properly in the workplace. For example, spending considerable resources on disproportionate paperwork and record-keeping, far in excess of what is necessary to comply with the law, diverts employers from taking a sensible approach to identifying the risks that actually affect their business and their employees, and taking sensible day-to-day precautions to protect their employees from those risks.

In the interests of both employers and employees, the aim is to improve understanding of what the law actually requires and to allay fears about possible litigation to help build employers’ confidence to take on new activities and further develop their businesses and to include recruiting new employees, which is so vital today.

To address these issues, the Government are implementing a package of measures, based on the recommendations of my noble friend Lord Young of Graffham and Professor Löfstedt, to reform both the civil litigation system and to restore a common sense approach to health and safety. This measure forms part of this package and I would reassure noble Lords that its introduction into the Bill at a later stage is purely due to the timing of the publication of Professor Löfstedt’s report and the Government’s desire to address the concerns he raised at the earliest opportunity.

We have already put in place a programme of work to improve understanding by simplifying the supporting guidance that explains what the law requires and to consolidate and clarify the body of health and safety regulation in a number of key industrial sectors. This programme builds on the work carried out as part of the better regulation initiative led by the previous Administration.

The clause does not change the duties placed on employers, but amends Section 47 of the Health and Safety at Work etc. Act so that in future, unless the legislation provides for an exception, it will be possible to bring a claim for compensation in respect of a breach of health and safety legislation only where it can be proved that the employer has been negligent.

Claims for breaches of the general duties of the Health and Safety at Work etc. Act can already be brought only for negligence. The change in this Bill simply extends this position to regulations made under the Act to create a consistent approach to civil litigation for all health and safety legislation. This means that if an employer fails in their duty of care towards their employee they can of course be successfully sued. However, where an accident has taken place and the employer could not have reasonably done anything about it, they should not be liable.

In the knowledge that they will not be liable if an accident happens which is totally outside their control, this change will support responsible employers, who take care to protect their employees, by encouraging them to take sensible steps to manage workplace risks. I am grateful for the speech made by my noble friend Lady Brinton and the example that she gave to support the helplessness that some businesses can experience where there is no defence for them. This will not assist irresponsible employers who fail to comply with the law as they will have no defence to an accusation that they did not take all reasonable steps to protect their employees.

This amendment to the Health and Safety at Work etc. Act has been adopted in preference to amending each strict liability duty, as Professor Löfstedt suggested, because an approach targeting each strict duty would be much more complex, and therefore complicated for businesses and their employees to understand.

The noble Baroness, Lady Turner of Camden, brought up the concern that the law would go backwards, which I think was her expression, and the employer would hold all the cards. I would like to assure her and all noble Lords that the provision will affect only a small number of duties that are unqualified. In any claim for negligence, the existing regulatory requirements on employers will remain relevant, as the courts will look to the statutory duties, approved codes of practice and established guidance to inform them about what risks a reasonable employer should be aware of and the steps they would be expected to take to manage those risks. I stress again that this change will only assist responsible employers who have done what is required of them and can demonstrate this.

This amendment reflects an adjustment to help rebalance the civil litigation system and, as part of the wider reforms of the system, is a proportionate response to the impact that strict duties currently have in the civil litigation system identified by Professor Löfstedt. It also has the benefit of creating a consistent approach to civil litigation for all health and safety legislation.

Currently, most claims are brought for both breach of statutory duty and negligence and, in practice, it is anticipated that the vast majority of claims will still be capable of being brought for negligence. For the small number of cases where this is not possible, as now, individuals will be able to claim for financial and other support through the state benefit system.

This measure is not about reducing the number of claims. It is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions. Providing employers with this important reassurance will help them to manage health and safety risks in a sensible and proportionate way.

[Lord Browne of Ladyton]

At the heart of the noble Viscount’s argument there are general arguments about numbers. The Health and Safety Executive’s impact assessment says that this change will affect 200 sets of health and safety regulations. When it seeks to answer its own question about the number of cases that this will effect, it says that it has not a clue. In the light of that information, which I have here in this assessment before me, could the Minister please tell the Committee on what basis he estimates that this will impact on a small number of regulations and cases? If that is wrong, we are legislating here on a false basis. The HSE has no idea what the statistical base of this is.

19:15

[Viscount Younger of Leckie]

I thank the noble Lord, Lord Browne, for that intervention. I shall answer his questions in a moment.

It now falls on me to answer a number of questions, which I will do in a particular order, if I may. The first substantive question came from the noble Lord, Lord McKenzie, and concerns the basic concept of why there was no review or consultation, as he put it. I assure him that the noble Lord, Lord Young, and Professor Löfstedt consulted widely and found that there was significant and consistent evidence from businesses that the perception of a compensation culture and the fear of being sued have a significant effect in driving overimplementation of the law, and going beyond what the law requires creates unnecessary costs for employers, diverting them from focusing on taking the practical day-to-day steps to protect their employees. Professor Löfstedt, in addition, had concerns that the wider reforms to the civil litigation system and changes to simplify the health and safety system would be less effective if business continued to overimplement the law due to a fear of being sued.

[Lord McKenzie of Luton]

If the Government’s case is that there was consultation and that Professor Löfstedt undertook that consultation, why did the Government not follow his recommendations?

[Viscount Younger of Leckie]

As has been mentioned earlier, we are following the vast bulk of his recommendations.

[Lord McKenzie of Luton]

I shall try not to prolong this, because I know that the Minister has a lot to get through and the clock is ticking. Clearly, the Government did not follow the recommendation related to strict liability. Or is the Government’s case that it did?

[Viscount Younger of Leckie]

In answer to the noble Lord, I would say that it is not black and white that we followed all the recommendations from Professor Löfstedt, but I shall certainly write to him to explain which recommendations we did follow and which, perhaps, we did not.

The noble Lord, Lord McKenzie, also raised the issue of whether the issue is wider in scope than the Löfstedt recommendation. Amending each strict liability duty individually, as Professor Löfstedt suggested, would be complex, as I mentioned earlier, requiring a large number of changes to many sets of regulations, and confusing for employers. A single amendment to the Health and Safety at Work etc. Act addresses the same policy objective, is simple to understand and provides a consistent approach to civil litigation for all areas of activity covered by health and safety at work legislation.

The noble Lord, Lord McKenzie of Luton, also raised the question of whether the change would mean that cases were more difficult and costly to prove, and that employers would hold all the information. Employees will still have the right to bring claims when fault on the part of their employer can be proved. Currently, most claims are brought for breach of statutory duty and negligence, and in future it is expected that most claims will still be able to be brought for negligence.

[Lord McKenzie of Luton]

I am sorry, but we are dealing with some very important points here. On this mantra that most claims are brought under negligence and breach of statutory duty—even if it is right, and I am prepared to accept the Minister’s word on that—is it not right that they do not necessarily all proceed to the end of all those processes? The breach of statutory duty process leads to negotiations of settlement way beyond what you get for some of the burdens claimed for negligence.

[Viscount Younger of Leckie]

It is clear that the vast majority of cases will be covered by negligence and that a small number of cases will fall outside. We should be clear about that.

Many health and safety duties are qualified by “so far as is reasonably practicable”, as was mentioned earlier. In practice, the tests applied for negligence and breach of statutory duty, qualified by “so far as is reasonably practicable”, are likely to be very similar. The record-keeping requirements of health and safety legislation will continue to ensure that information is available to employees where an accident has taken place.

I turn to the question raised by the noble Lord, Lord Monks, concerning the European position. Under European Union law, member states can generally decide what sanctions and remedies to put in place to enforce EU obligations, subject to certain rules. In Great Britain, health and safety obligations are backed by various enforcement powers and criminal sanctions as well as the opportunity to claim for compensation in the civil courts, which will remain through the right to sue for negligence. Taken as a whole, the sanctions available for the enforcement of EU directives are, and will continue to be, effective.

I turn to the various points made by the noble Lord, Lord Browne. One of the questions that he raised concerned how much money is currently returned to the state by the Compensation Recovery Unit, and how much will be lost by this amendment. That is a very straight question. It is not possible to disaggregate the amount because the benefits available are dependent on individual circumstances. He also raised a point about the reform in terms of shifting the burden of supporting employees who are unable to make a claim to the state. Again, that was a very straight point. As I mentioned to the noble Lord, Lord McKenzie, it is recognised that a very small number of employees may not be able to claim in future under the new arrangements. None the less, this change is important as part of the wider package of government reforms in signalling an end to the perception of the compensation culture. Provision for non-contributory no-fault compensation payments—I emphasise that—for disablement caused by an accident at work is already available to individuals through the Industrial Injuries Scheme. All serious incidents will continue to be investigated by the Health and Safety Executive.

The noble Lord, Lord Browne of Ladyton, also brought up the perception of the compensation culture. Businesses have expressed concerns about this fear. It is true and it has long been a driver of overcompliance. That was very clear to the noble Lord, Lord Young of Graffham, and, indeed, to Professor Löfstedt.

One of the crucial questions that the noble Lord, Lord Browne, raised, which was also raised rather more obliquely by the noble Lord, Lord Young of Norwood Green, was that of evidence. I should emphasise that, in conducting his review, Professor Löfstedt consulted most widely, including 30 meetings with individual stakeholders and several business forums. He also received 250 written submissions. The findings of his review build on the work completed by the noble Lord, Lord Young of Graffham, in his report, Common Sense, Common Safety. In preparing his report, the noble Lord consulted 132 wide-ranging organisations representing relevant professionals, including personal injury lawyers, businesses and associated organisations. He also spoke to more than 100 individuals, including health and safety professionals, Members of Parliament, councillors and leading academics in the field of law. I hope that goes a little way to answering the noble Lord’s question.

The noble Lord, Lord Browne, also asked what the Government’s assessment was of the number of claims that this change will affect. It is anticipated that there will be only a small reduction in the number of claims made as most will still be able to be brought for negligence, as mentioned earlier. The only claims that are significantly affected will be those which rely on a breach of the law where there is no, or insufficient, evidence to prove the employer was negligent.

Finally, the noble Lord, Lord McKenzie of Luton, raised the issue of negligence and the fact that the breaches of statutory duties were not equivalent and that the tests for negligence were nebulous. I think that was the term he used. Negligence and breach of statutory duty are different tests but most statutory duties require an employer to take such steps “as are reasonably practicable”. The common law requires an employer to take reasonable care for the safety of their employees. In practice, in the vast majority of cases the issues in dispute will be the same and the standard expected of the employer is likely to be very similar as now. As I mentioned earlier, the statutory framework will continue to inform the courts about the standards expected of the reasonable employer.

For the reasons that I have outlined, I commend the clause to the Committee.

[Lord McKenzie of Luton]

The noble Viscount referred to my use of “nebulous”. If I remember correctly, that is the Government’s word, and was in the impact assessment. Coming back to the timing of this clause being introduced into the Bill, he referred to the fact that it could not go in earlier because of the Löfstedt report. Professor Löfstedt reported in November 2011, and indeed the Government responded in November 2011. That was time enough to get it in earlier.

[Viscount Younger of Leckie]

I have certainly noted the point that the noble Lord has made. I was clearly of the understanding that that was the reason but I will certainly revert and check, given the dates that I have just received from him.

[Baroness Turner of Camden]

In responding to the Minister, I begin by thanking everybody who has participated. We had an excellent debate, drawn from a lot of experience and expertise. It really has been very good indeed, and I am very grateful to everybody who has contributed. However, I am sure that the Minister will not be surprised to learn that I do not accept very much of what he has got to say. I still think that Clause 61 should not become law. I cannot understand why he says that it will help good employers. A good employer is helped by the existing legislation, and if the Government are concerned to improve health and safety at work arrangements, then they should be supporting the Health and Safety Executive instead of diminishing its resources. If they think they need to do more on health and safety, the HSE is highly respected and ought to have more resources, rather than fewer—which is what the Government’s present policy seems to be.

I really do not accept a great deal of what the Minister has said today. I cannot understand why he is going on about compensation culture. I have made some contributions about my experience in that situation when I worked for an insurance company. We have been talking about claims by employees which often take years to settle, particularly if it is a death; frankly, what sort of compensation culture is that? There is a case for looking at aspects of our legislation, but certainly not via this clause, which takes away some of the support that people currently have in the area of health and safety at work.

I am not at all in favour of what the Minister has said. Of course, in Committee we do not have votes. However, I can assure the Minister that this will be back again at Report, because a number of us feel very strongly about it. I certainly do and I am sure that my noble friends do as well. He has not heard the last of this. In the mean time, I do not press this question.

Clause 61, as amended, agreed.

Clause 62 agreed.

[Viscount Younger of Leckie]

My Lords, this may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.

Committee adjourned at 7.29 pm.

House of Lords

Monday 14th January 2013 Lords Chamber

Monday, 14 January 2013.

14:30

Prayers—read by the Lord Bishop of Exeter.

Education: English Baccalaureate Certificate

Monday 14th January 2013 Lords Chamber

Question

14:36

Asked By

[Baroness Perry of Southwark]

To ask Her Majesty’s Government what assessment they have made of the potential benefits to pupils of all ranges of abilities of the English Baccalaureate Certificate; and how they will measure those benefits.

[Baroness Garden of Frognal]

My Lords, the Government are committed to providing pupils with new qualifications which match the best in the world, providing the strongest possible basis for further and higher education and for employment. These will be universal qualifications sat by all those who currently sit GCSEs. The introduction of these new qualifications, in tandem with other reforms, will benefit all pupils. This will be evidenced by our performance in international tests and in the wider economic benefits that will arise from setting expectations which match those of our highest-performing competitors.

[Baroness Perry of Southwark]

I thank my noble friend for that reply. Can she assure me that there will be provision within the English baccalaureate certificate for those young people who are less academically motivated but who have very strong talents in the technical and vocational sphere?

[Baroness Garden of Frognal]

I can indeed assure my noble friend of that. Nothing on the academic side should detract from the value we place on vocational education. In response to the Wolf review of vocational education, the Government have accepted the recommendations made, which will ensure that pupils whose talents and motivations are more on the vocational and practical side can be catered for within the school curriculum.

[Lord Quirk]

My Lords, is it not the case that, over the years, Labour and Conservative Governments have chosen to congratulate themselves on the much higher proportion of passes at various kinds of examinations? Is it not the case, as has been recognised on both sides, that this has been detrimental to both the most talented and the least talented? Therefore, should we not be welcoming something like the EBacc if it will help us to restore our international reputation and build up our schools to something approaching the best of northern Europe?

[Baroness Garden of Frognal]

The noble Lord has great expertise in these areas. Yes, it appears to be a fact that there has been some form of grade inflation within examinations. We are intent on making sure that the qualifications which our young people acquire through school fit them properly for further and higher education or employment. One factor worth mentioning about the EBacc is that it is encouraging social mobility. The proportion of children on free school meals in schools who are now attaining the basis standards in English and maths is far higher than it was under the previous regime.

[Baroness Whitaker]

My Lords, is the noble Baroness sure that the English baccalaureate is inclusive enough with regard to design, which is one of our great, national traditional strengths?

[Baroness Garden of Frognal]

Design is of key importance but the English baccalaureate is not compulsory. It is quite possible for schools to offer other provision and design will feature strongly in the alternative provision that schools can offer.

[Lord Storey]

My Lords, the Minister will be aware that the UK music industry contributes nearly £4 billion to the UK economy. Sadly, since the introduction of the EBacc in 2010, we have seen the number of people studying and teaching music declining. How can we reverse that decline? Does the Minister think that having an arts pillar as part of the EBacc may be the solution?

[Baroness Garden of Frognal]

My noble friend again speaks with the expertise of a head teacher. The Government certainly recognise the valuable contribution that music makes, not just to the economy but to the quality of life as well. We have published the national plan for music, which should enable all children to learn a musical instrument, to make music with others in an orchestra or band, to learn to sing and generally to have the opportunity to progress. We certainly hope that that will encourage more young people and give them the opportunity to pursue music.

[The Lord Bishop of Exeter]

My Lords, will the noble Baroness clarify what proposals are being considered for the accreditation of subjects that are not to be included in the English baccalaureate? Will it be through a continuation of GCSEs or some other form? What assessment is being made of the impact of this uncertainty on the teaching of these subjects to those pupils who may opt to study them?

[Baroness Garden of Frognal]

The right reverend Prelate makes a valid point. At the moment, GCSEs will be superseded by English baccalaureate certificates. They, in turn, will make up an English baccalaureate if pupils have attained the right standard in the five main subject areas. There should, we hope, be a time of discussion as to the transition between the exam systems. We hope that this will not be too big a hurdle for teachers and pupils to accommodate because it is important that we do not lose that flow of continuity for teaching and learning.

[The Earl of Listowel]

My Lords, I welcome the Government’s intentions with regard to strengthening and increasing the credibility of examinations, but will the Minister take this opportunity to reiterate the Government’s commitment to raising the status of teaching and perhaps acknowledge that recruiting and retaining the best teachers, and giving them the best support, will be the most important factor in improving educational outcomes and keeping us internationally competitive into the future?

[Baroness Garden of Frognal]

My Lords, the Government are committed to getting the brightest and best people into teaching. In that way, you end up in a virtuous circle with enthusiastic, motivated and bright teachers transmitting that enthusiasm to their pupils. The Government have gone a long way to ensure that teachers have the opportunity for proper training. Under programmes such as Teach First, which has been a great success and was introduced by the previous Administration, we get bright graduates choosing to go into teaching, which has had an immense impact on schools.

[Baroness McIntosh of Hudnall]

My Lords, following on from the earlier question about the advisability of having an art strand within the EBacc, what are the Government planning to do to ensure that schools continue to offer these subjects that are not included in the EBacc, and not only continue to include them but actively encourage them to take up all the opportunities that the Government have created through, for instance, the work of the Darren Henley review for people to benefit from the arts, which will otherwise, I fear, be lost?

[Baroness Garden of Frognal]

As the noble Baroness will be aware, we have a debate on this later today. The EBacc is designed to leave at least 20% to 30% of the curriculum for other subjects within it. We have had reviews from Darren Henley on music and culture in schools, and we are taking forward his recommendations on such things as art, design, music, dance and so on. We hope that there is every opportunity for young people to be able to take advantage of those sorts of activities within the school day.

[Lord Lucas]

My Lords, will the Government undertake that they will allow schools to continue to offer the IGCSE and will they continue to report the results of that examination in the annual performance tables?

[Baroness Garden of Frognal]

My Lords, as far as I am aware, that is still under discussion, as is the key stage 4 curriculum. Perhaps I may come back to my noble friend if that is an incorrect answer.

Justice: Interpreting Services

Monday 14th January 2013 Lords Chamber

Question

14:45

Asked By

[Baroness Coussins]

To ask Her Majesty’s Government what quality criteria they are using to assess the performance of Capita in delivering interpreting services to the criminal justice system.

[Baroness Coussins]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as vice-president of the Chartered Institute of Linguists.

[Lord Ahmad of Wimbledon]

My Lords, performance under the language services contract with Capita is measured by agreed indicators, including the success rate for bookings. I am pleased to report that this improved from 66.5% to 95.3% between February and August 2012. Complaints during this period also fell significantly. The National Audit Office recommended that the Ministry of Justice obtained independent advice on quality standards under the contract and I am pleased to report that the Minister has already met umbrella interpreter organisations in this respect.

[Baroness Coussins]

My Lords, I am delighted that constructive talks are finally taking place with the professional bodies following the damning reports from the National Audit Office and the Public Accounts Committee. However, is the noble Lord aware that the success figure of 95% that he gives excludes the large number of short-notice requests from the courts, which would bring the fulfilment rate down to more like 56%? In any case, that figure tells us nothing about the competence of the interpreters who do turn up. Will the Government now agree to conduct a thorough, independent inspection of the service so that the quality of service can be improved and the number of properly qualified interpreters who are willing to work for Capita can be significantly increased?

[Lord Ahmad of Wimbledon]

The noble Baroness makes a valid point about short-notice bookings. In that respect, it is true that bookings for hearings with less than 24 hours’ notice were temporarily descoped from the contract in mid-February and the courts and tribunals reverted to previous arrangements. However, I can report to the House that a pilot to return these bookings has begun in selected criminal courts across England and Wales and will be phased back across regions and jurisdictions when the project board has continued confidence in performance.

Turning to the competence and qualifications of interpreters, the new contract allows for an increased range of acceptable qualifications and experience. Under the contract, all foreign language interpreters must show evidence that they have the required qualifications before they can undertake assignments. We have a tiering facility and all courts are encouraged to ensure that interpreters are qualified to tier 1 or tier 2 for all bookings unless otherwise agreed with the court or tribunal.

[Lord Harrison]

My Lords, there was also a requirement by the National Audit Office to ensure evaluation of the incentives provided for professionally qualified linguists, interpreters and translators that would encourage them back to the courts to work. What is being done on that score?

[Lord Ahmad of Wimbledon]

My Lords, all the National Audit Office recommendations have been taken on board and are being fully looked at and implemented.

[Lord Hylton]

My Lords, can the Minister comment on how Capita is performing in asylum and immigration applications? Does he accept that good interpretation leads automatically to good first decisions and avoids masses of appeals or judicial reviews? Finally, will he do his level best to ensure that women interpreters are provided for women applicants?

[Lord Ahmad of Wimbledon]

The noble Lord makes important points in relation to immigration and women. In general terms, service volumes are in excess of 72,000 and involve 163 languages. I will write to the noble Lord specifically about immigration matters but it is important to note that complaints for this particular service have also decreased quite significantly, showing the growing competence of Capita. In criminal courts, for example, complaints declined from 9.9% in February to 1.4% in August. In civil and family courts, complaints declined from 5.8% to 0.6% and in tribunals from 17.1% to 5.2%. I am sure your Lordships would agree that booking success rates have increased, costs have come down and complaints are down, and that that is good news.

[Lord Marks of Henley-on-Thames]

My Lords, given the difficulties and unhappiness that there has been with the contract with Capita, what lessons have been learnt for the future about tests for outsourcing professional services of this type before contracts are placed on other occasions?

[Lord Ahmad of Wimbledon]

I thank the noble Lord for his question. I think life is for learning and such matters apply to the granting of contracts. Reference has been made to the Public Accounts Committee and the National Audit Office. As I have alluded, their recommendations are being looked at with a view to improving service. I again assure the House that the Government have taken on board the issues that were raised, and the statistics and the reviews are showing positive progress towards achieving the given targets.

[Lord Hunt of Kings Heath]

My Lords, when it came to short-notice bookings, the noble Lord used the term “descoping from contract”. Does that mean that the contract was withdrawn from Capita? If it does, was the company asked to pay a financial penalty?

[Lord Ahmad of Wimbledon]

My Lords, when I mentioned the descoping, it was with reference to short-notice bookings, as the noble Lord said, but, as I have already said, a pilot has begun to return these bookings to that contract. With reference to fines, specific credits can be put place, against which non-performance is measured, that are set at 98%. I am pleased to report to the House that from the middle of this year, they are being looked at and tallied. However, there was a period when that particular compensation, for want of a better term, was not used, but that was in light of the fact that Capita had provided £3.5 million in addressing the shortcomings of the service.

[Lord Tebbit]

My Lords, in my noble friend’s reply to an earlier question, I think that I missed his comments on whether it is any longer lawful in this country for a woman to express the wish to have a woman interpreter. Is that not quite obviously a sexist attitude of the kind that our equality legislation should prohibit?

[Lord Ahmad of Wimbledon]

As ever, my noble friend’s contribution is well made and very eloquent. I assure the House that in the provision of interpretation services it is important that anyone in our justice system is given an interpreter with whom they can work—an interpreter who understands their need and who understands their language and all sensitivities. If, in a particular cultural or sensitive case, a woman interpreter is a preferred option, we shall seek to provide one. If a particular language is required, we will seek to provide it. That is the right way forward for this Government.

Carers

Monday 14th January 2013 Lords Chamber

Question

14:52

Asked By

[Lord Touhig]

To ask Her Majesty’s Government what is their estimate of the saving to public funds as a result of the work of unpaid carers in the United Kingdom.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Government themselves have not estimated savings to public funds as a result of unpaid carers’ contribution to care and support, although we are aware of estimates by other organisations. There is scope for debate about how best to put a financial value on this care but there can be no doubt about its huge value to those who receive care and to the wider community.

[Lord Touhig]

My Lords, I am sure that the Minister would agree that we owe a great debt to the carers of this country and, indeed, the Government recognise that because they have promised that families with a disabled child and in receipt of disability living allowance will be exempt from the housing benefit cap. However, according to the regulations, when that disabled child becomes a disabled adult, the child is considered to be a separate household from the parents who they live with. No matter that the disabled adult will perhaps need the same level of care that they received as a disabled child; the parents will then be subject to the housing benefit cap. Why?

[Earl Howe]

My Lords, the noble Lord will have to forgive me because I will need to write to him about benefits, which do not directly fall under my remit in the Department of Health. However, I can say to him that more young carers services are extending their age group to cover young adult carers, and there needs to be a proper join-up between the two. In some situations, it is true that the young adults’ needs are unmet; they can fall down the gap and not receive adequate support. A transition between children’s services and adult services should be smoother—we acknowledge that, and we are addressing this in the draft Care and Support Bill.

[Lord Wigley]

My Lords, does the noble Earl accept that many unpaid carers manage to carry their enormous responsibilities only because of respite care and other assistance, sometimes from paid sources, and that if those paid sources were not available, many people now living at home might find themselves in institutional care? Will he therefore, in any government cut backs, make sure that no action is taken that undermines the position of carers?

[Earl Howe]

I agree with the noble Lord. Carer’s breaks are extremely important, which is why we have pledged to invest £400 million between 2011 and 2015 to improve the NHS’s support carers to enable them to take a break from their caring responsibilities. The current operating framework for the NHS requires the service to work closer than ever before with local carers organisations and councils to agree plans to pool resources and ensure that carers get the support and the break that they deserve.

[Baroness Barker]

My Lords, is the Minister aware that in November 2011, in a report from the Cass Business School for Carers UK called The UK Care Economy: Improving Outcomes for Carers, the authors noted that the only reliable data about carers comes from the census, which is national? Given that CCGs and health and well-being boards are about to start commissioning services locally and that their information is at best incoherent and inconsistent, what help will the Government give them in order properly to assess the numbers of carers and the level of need they are supposed to be meeting?

[Earl Howe]

My Lords, my noble friend makes an extremely important point. Our report, Recognised, Valued and Supported: Next Steps for the Carers Strategy, had four key priorities, one of which was to identify carers earlier. Healthcare professionals undoubtedly have a role to play in supporting those with caring responsibilities to identify themselves as carers in the first instance. We therefore made around £850,000 available in the previous financial year to the Royal College of General Practitioners, Carers UK and the Carers Trust to develop a range of initiatives to increase awareness and understanding of carers’ needs in primary care. We are building on that further.

[Baroness Pitkeathley]

My Lords, I remind the House that the figure usually given is £119 billion that is being saved from public funds. Since the census now shows that the number of carers has increased by 11%, no doubt that figure will go up. Since many carers give up paid work to become carers and only 600,000 of them receive the carer’s allowance, does the Minister agree that many of them will be building up poverty for themselves in the future? What guidance must be given, therefore when carers’ assessments are being made to enable them to stay in paid work for as long as possible?

[Earl Howe]

My Lords, the latest figure I have for carers from the census is that there are 5.4 million unpaid carers in England. The noble Baroness was right to mention the figure of £119 billion, although it is a figure we can argue about. It is probably an overestimate as regards the cost to public funds. However, she makes a very important point about employment. The Government fully recognise the importance of supporting carers to remain in work. The Department of Health has established a task and finish group with employers for carers to explore how to improve support for carers to remain in employment. Jobcentre Plus provides practical assistance for carers seeking work; in particular, it can offer practical support for all carers who are employed for less than 16 hours a week.

[The Earl of Listowel]

My Lords, is the Minister aware of the concern of many adult carers of children with disability at the number of changes in social workers that their child has, and how that undermines their ability to be effective advocates for these children, especially as they make the transition to adult services? Does the Minister monitor the number of changes in social workers supporting such families? How can we ensure that this important factor is improved upon?

[Earl Howe]

My Lords, the noble Earl makes an extremely important point about continuity of care. I am not aware that my department monitors the point that he raises, although it is one that we expect local authorities to bear closely in mind as they fulfil the criteria to be rolled out in the social care outcomes framework, which contains a strong strand relating to service user satisfaction.

Health: Cancer

Monday 14th January 2013 Lords Chamber

Question

14:59

Asked By

[Lord Aberdare]

To ask Her Majesty’s Government what steps they are taking to ensure that the Department of Health 2013 generic cancer symptoms awareness campaign will help improve early diagnosis of pancreatic cancer.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, from today, we are piloting a general cancer symptoms campaign to raise awareness and encourage people with relevant symptoms to visit their GP. The campaign will run in five cancer network areas until mid-March and will be relevant to a range of cancers, including pancreatic cancer. Data, including GP attendance, urgent referrals for suspected cancer and diagnostic test activity, will be collected and analysed to assess the impact of the campaign.

[Lord Aberdare]

My Lords, pancreatic cancer is the fifth most deadly cancer in the UK, accounting for some 7,900 deaths a year. UK survival rates are significantly worse than in some other countries, as are the numbers of patients being referred for operations, the only effective cure. Since earlier diagnosis is essential to improve these outcomes, what plans does the Minister have to ensure that the proposed campaign includes new tools to help GPs detect pancreatic cancer and better pathways for them to refer suspected cases for further testing and support?

[Earl Howe]

The noble Lord is absolutely right about the importance of earlier diagnosis. I can give two examples of work running this year to assist GPs in the assessment and earlier diagnosis of cancer patients, including those with pancreatic cancer. Rolling out from March, Macmillan Cancer Support, with funding from the department, will be piloting an electronic cancer decision support tool for GPs to use as part of their routine practice in order to help identify and assess more effectively patients with possible cancer. The initial pilot will cover a number of cancers, including pancreatic cancer. Further, the National Action Cancer Team is supporting the distribution of further desk-based versions of risk assessment tools for use in general practice, and these include a pancreatic cancer risk assessment tool.

[Baroness Gardner of Parkes]

My Lords, is the Minister aware that people think that there is no effective treatment for pancreatic cancer—we are always told that lung and pancreatic cancer are the two worst—but other treatments are being given in other countries? A very dear relation of mine in Australia has benefited from having radium pellets injected directly into the secondary lesions and is progressing very well indeed in the second year since her treatment. Her symptoms are much improved. Can he give an assurance that we will give people in this country hope that we will look at treatments being used in other countries that are improving pancreatic cancer outcomes and ensure that we are not left behind in this area?

[Earl Howe]

My Lords, I am very interested to hear about the treatment mentioned by my noble friend and I can remind her, although I am sure she needs no reminding, that one of the key roles of NICE is to keep evidence of new treatments under review. I do not doubt that as a result of my noble friend’s intervention, it will wish to look at that particular treatment. Pancreatic cancer can grow initially without any symptoms and it is possible that people might not recognise the symptoms. That is why the “Know 4 sure” campaign, which I have mentioned, highlights four key symptoms including loss of weight and pain, which can be symptoms of pancreatic cancer.

[Lord Turnberg]

My Lords, is it not the case that the diagnosis of pancreatic cancer is extremely difficult? The organ lies deep within the abdomen and cannot be seen or felt, so by the time the patient shows symptoms, it is often too late. What we really need is research that will provide us with a biomarker which can be used for screening and early diagnosis. Can the noble Earl tell us whether research along these lines is going on within the NHS?

[Earl Howe]

My Lords, via the Medical Research Council we are supporting a study to assess the effectiveness of a new test called the Mcm5 protein test to see if it can help to diagnose cancer of the pancreas, bile duct and gall bladder. I am also aware of a number of other research projects that my department is funding in the field of pancreatic cancer and I would be happy to write to the noble Lord with the details.

[Lord Sharkey]

My Lords, where you live will dramatically affect your chances of surviving pancreatic cancer. In south-west London the one-year survival rate is 22% while in north Trent it is 11%. Do we know why this is? What are we getting right in south-west London but not in north Trent?

[Earl Howe]

My noble friend is absolutely right to raise the point. To support the NHS in tackling regional variations in cancer survival rates, we are providing data to providers and commissioners that allow them to benchmark their services and outcomes against one another and to identify where improvements need to be made. Surgical resection is currently the best curative intervention for pancreatic cancer, and through the National Cancer Intelligence Network we have already made available data collections on the survival rates and surgical resection rates across a range of cancers, including pancreatic cancer.

[Lord Kakkar]

My Lords, what proportion of patients diagnosed with pancreatic cancer is managed in specialist centres by a specialist, multidisciplinary team? What proportion of patients in those centres is entered into clinical trials? We all recognise that participation in clinical research improves clinical outcomes in these centres.

[Earl Howe]

My Lords, the UK now has the highest national per capita rate of cancer trial participation in the world, which is something that not everybody realises. We have improved the amount of information available to patients, clinicians and the public about clinical trials by establishing the UK Clinical Trials Gateway. I will write to the noble Lord with information about specialist centres, but he will know that surgery for pancreatic cancer is a complex business and needs to be undertaken by those who are very well versed in that particular line of clinical activity. I am sure that a high proportion will be treated in those centres but I will find out more if I can.

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my health interest. On the question of variation, the noble Earl mentioned earlier the role of GPs. Will he accept that there is a wide variation in the performance of GPs? Can he confirm that we can expect the NHS Commissioning Board from 1 April this year to start taking action where GPs are not doing what is required?

[Earl Howe]

Yes, my Lords, because a major role of the Commissioning Board is to support general practice and, indeed, vice versa. In the current year, cancer networks are continuing to support GPs to diagnose cancer earlier through a range of work including continual professional development, primary care-led audits of cancers, and ensuring that GPs are prepared when patients present in response to public cancer awareness campaigns. Therefore, there is a range of work going on to ensure that GPs are better versed in this area.

Prevention of Social Housing Fraud Bill

Monday 14th January 2013 Lords Chamber

Third Reading

15:08

Bill passed.

Public Bodies (Abolition of British Shipbuilders) Order 2013

Monday 14th January 2013 Lords Chamber

Public Bodies (Abolition of the Aircraft and Shipbuilding Industries Arbitration Tribunal) Order 2013

Motions to Approve

15:09

Moved by

[Lord Gardiner of Kimble]

That the draft orders laid before the House on 1 November 2012 be approved.

Relevant documents: 14th Report from the Secondary Legislation Scrutiny Committee, 11th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 January.

Motions agreed.

Electoral Registration and Administration Bill

Monday 14th January 2013 Lords Chamber

Committee (2nd Day)

15:09

Relevant documents: 5th Report from the Constitution Committee, 6th and 8th Reports from the Delegated Powers Committee.

Amendment 25

Moved by

[Lord Lexden]

25: After Clause 5, insert the following new Clause—
“Representation of the People Act 1985 (Amendment)
(1) The Representation of the People Act 1985 is amended as follows.
(2) In section 1 (extension of parliamentary franchise) omit subsections (3)(c) and (4)(a).
(3) In section 3 (extension of franchise for European Parliamentary elections) omit subsections (3)(c) and (4)(a).”

[Lord Lexden]

My Lords, in moving Amendment 25, I shall speak also to the other amendments in the group, which are all in my name. My principal purpose is to draw attention to a grave injustice that afflicts large numbers of our fellow countrymen and women living overseas and is keenly felt by many of them. Amendment 25 would sweep away entirely the existing severe restriction on their right to vote in our elections—a right that so many of them wish to exercise freely and without interruption while they reside in other countries—no matter how long their residence abroad may last. Surely Parliament should regard it as a duty to make full, principled provision to enable all our fellow countrymen and women living in other countries to take part in our elections if they wish, rather than just some of them, as is the case under the current, arbitrarily devised rules for British subjects overseas.

According to the Institute for Public Policy Research, some 5.6 million British citizens are now living in other countries, of whom around 4.4 million are of voting age. During their first 15 years after leaving Britain, they are eligible to register for, and vote in, our elections. Thereafter, these rights are confined to members of the Armed Forces, civil servants, employees of the British Council and employees of charities registered in the United Kingdom. For everyone else, the shutters come down firmly after 15 years. Those who have been registered under the 15-year rule can expect to receive a cold, terse letter from their registration officer in Britain, informing them that their rights to register and vote are at an end. Some of these letters may be better than others; perhaps I am a little prejudiced, having recently seen a scrappy communication from the electoral registration officer of the Royal Borough of Kensington and Chelsea, which contained a number of mistakes and addressed the recipient by her first name, getting that wrong too.

The loss of the right to vote can cause not inconsiderable distress. I have a great deal of correspondence on the matter. One lady in her late 70s wrote that, “Even though I expected it, when I received a letter from Corby Borough Council in November 2010 telling me I was no longer eligible to register as an overseas voter, I was devastated and still am. Since reaching voting age way back in the 1950s, I have never, ever not exercised my democratic right to vote. But now I have been disenfranchised”. However, at the same time, the right to vote under the present restricted arrangements has not been widely claimed. The most recent figures, produced by the Office for National Statistics at the end of 2011, show that only 23,388 British citizens living overseas were registered to vote here. That extraordinarily low number should be prominently in our minds as we debate this important legislation, whose object is to produce a better, more accurate system of registration which gathers in those who are eligible to vote as fully as possible. It is undoubtedly true that the number of overseas voters under the current 15-year rule would be considerably higher if the process of registration and voting were simplified and streamlined. That is what the last three amendments in this group are designed to achieve.

The fundamental issue at stake here is the complete exclusion of so many British citizens living abroad for more than 15 years from the right to vote here. According to the Institute for Public Policy Research, 55% of those who moved abroad in 2008 did so for work-related reasons, 25% for study and 20% for life in retirement. With an ageing population, and increased opportunities for work and study abroad, people are likely to continue to leave the United Kingdom in substantial numbers. Many of them will reside abroad for more than 15 years. In the countries to which they move, voting rights rest overwhelmingly on nationality, not residence. Apart from some nine Commonwealth countries—mainly islands in the West Indies—I understand that no state permits British citizens to vote in its principal national elections. They therefore exist in an electoral limbo.

Our existing law, restricting to 15 years the right of British subjects abroad to vote in our elections, is open to serious objection on the grounds that it does not conform with the requirements of international law on human rights. A much publicised case is winding its way through the European Court of Human Rights, brought by the redoubtable 91 year-old Second World War veteran and, in his younger days, Labour Party activist, Harry Shindler. As a non-lawyer, I cannot help but feel that he deserves to succeed, simply for showing such guts and determination. It is Harry Shindler’s contention that Britain’s restriction on overseas voting violates his right to choose his place of residence without being disenfranchised. He is invoking Article 3 of the first protocol and Article 14 of the convention itself. In a debate in this House on 2 March 2011, my noble friend Lord Lester of Herne Hill described the various periods of time that have been used since 1985 to restrict overseas voting—first to five years’ absence, then 20 and now 15—as,

“entirely arbitrary and, I dare say, discriminatory in a way that violates Article 14 of the European convention read with Article 3 of the first protocol”.—[Official Report, 2/3/11; col. 1124.]

The judgment of the European Court is eagerly awaited.

I come to the nub of the matter. It is this: where voting rights are concerned, our country today serves its citizens abroad less well than many others. Great democracies, such as the United States, Australia and France, confer on their citizens living in other countries a lifetime’s right to vote, and take considerable pains to ensure that the processes of registration and voting are simple and straightforward.

15:15

Within the European Union, Britain compares unfavourably with most of its partners. Of the 27 EU members, 22 countries allow their expatriate citizens the right to vote, without any restriction on the period of residence outside the home country. That is apart from Germany, which restricts it to 25 years for expatriates living outside the EU. Just two countries, Denmark and the United Kingdom, restrict the period for voting rights: the UK to 15 years and Denmark to four. In three countries—Cyprus, the Republic of Ireland and Malta—expatriates have no right to vote.

Within the European Union, the United Kingdom comes 23rd out of 27 in terms of the voting rights it allows expatriates. Is that where we really wish to be, at a time when there is a marked international trend—not only confined to the developed world—towards wide, unrestricting voting rights for expatriates? Why, for example, should British expatriates living in Spain lose their right to vote here after 15 years, when Spanish citizens happily established in the United Kingdom retain the right to vote in perpetuity in Spanish elections? The Deputy Prime Minister’s wife finds herself in that satisfactory position. Mr Clegg, however, seems strangely reluctant to champion the interest of his fellow citizens living in Spain.

The world has become much smaller. Britons overseas can listen to our radio via their computer, they can watch British television and read British newspapers just as rapidly as anyone living here, if they subscribe to them electronically. I make a confident prediction that this debate in our House today will attract one of the largest television online audiences abroad that your Lordships have had. I have met many British overseas residents who are as well, if not better, informed about British political affairs than the average voter here. So the old argument about expatriates’ inability to make an informed judgment about the great issues in our political life no longer holds.

At the same time, the contribution that expatriates make to our economy becomes ever greater—for example, those working for overseas affiliates or for foreign companies with bases in the United Kingdom where profits are taxed. Is it right for us to say to these people: “Yes, please go and work overseas, but of course you will not be able to vote after 15 years”? Should we say this to our fellow countrymen and women who are studying in other countries or to those who have retired from a lifetime of working for, or service to, our nation, receiving pensions which are taxed in Britain and affected by laws made here?

We should acknowledge and rejoice in the pride and deep interest which so many of our fellow British subjects take in the nation to which they belong. I have heard from a vast number of people living abroad since I gave notice last July that I would table this amendment. All have stressed the strength of the ties that continue to unite them to their country. In this connection, I have been inundated with offers to inspect tax returns, pension payment slips, deeds of property and returns—not very high at the moment—on investment savings in Britain.

The essence of the matter was well expressed in 2009 by Jenny Watson, the head of the Electoral Commission. She said:

“British citizens living abroad come from a wide variety of backgrounds, but we know that most maintain strong links with the UK. It is easier than ever before for British citizens abroad to keep in touch with friends, family and colleagues back home and many will also want to have their say in elections”.

Any time limit is inherently flawed because there is no definitive way of deciding what the limit should be. Any limit that may be set has to be arbitrary and so is inevitably unjust. That is why our 15-year limit should go, as Amendment 25 proposes.

Amendment 26 requires no more than a few words. It is designed to provide the Government with an alternative to the immediate abolition of the 15-year rule. In the various statements that members of the Government have made on this subject, there has been no hint that immediate reform is likely. Though sympathetic to the case for change, they say that the matter requires further consideration. I hope that my noble friend will be able to tell the House today that the Government have now been persuaded by the arguments in favour of swift action, but I recognise that, sadly, he may not. Amendment 26 provides the acceptance of the need for change in principle and for the creation of a framework through which change could be introduced by secondary legislation in due course.

The remaining three amendments seek to improve the processes for registration and voting for our fellow countrymen and women overseas. At present, those who wish to remain on the electoral register must go through the protracted process of reregistering every year, after having to get their initial applications countersigned by another, unrelated British citizen not resident in the United Kingdom, even though a passport number provides positive identification of them. The requirements deter many from registering. The annual repetition of the whole process is widely felt to be unnecessary. It seems that the forms are rarely, if ever, checked. It must make sense to consider extending the period of validity of each registration of an overseas voter until the day following the date of the next general election. That is what Amendment 27 would do. There would be negligible risk of fraud because overseas electors are positively identifiable by means of their British passport number. Extending the period of registration should result in the more complete and accurate registration of overseas voters.

Amendment 28 seeks to ensure that overseas voters benefit as fully as possible from the development of online registration as envisaged by the Bill. Online registration can be expected to become the procedure of choice for British citizens overseas. Here, too, they have the advantage of being positively identifiable by means of a single, uniform identity document, the British passport. All British passports are now issued by the Identity and Passport Service of the Home Office, and from a date due to be announced this year, all applications from British citizens overseas will have to be made via the internet. It should not be unduly difficult to make effective arrangements through the Identity and Passport Service so that online application forms for passports from British citizens overseas include a question asking applicants whether they wish their passport applications to be treated simultaneously as an application for overseas voter registration, and if so, provide their most recent address.

During the 10-year period that passports are valid, their holders may of course move from one place to another. To ensure that they continue to be included on the electoral register, they could be asked to register their change of address on the Foreign Office’s LOCATE database, which is freely available via the internet. Therefore, it should be possible to devise an efficient system for online registration using existing online facilities at minimal extra cost and with the security of the passport.

Finally, Amendment 54 relates to online voting. Extending the electoral timetable for our parliamentary elections from 17 to 25 working days should make it much easier for British citizens overseas to be able to vote by post. However, the use of online methods could improve voter turnout further, as last year’s French elections indicated so clearly. In the French elections, there were just over 1 million registered overseas voters out of a total French population resident abroad of some 2.2 million. Around 700,000 of France’s overseas electors chose to vote via the internet; 300,000 voted in person or by proxy, using 800 polling stations outside France; some 70,000 voted by post. Clearly, online voting, which was offered for the first time in those elections, would seem to be the way of the future. Surely a similar system could be devised for British citizens overseas or, alternatively, a simpler e-mail-out/post-back system akin to that used by American citizens overseas, which was seen in action successfully last autumn.

I am very grateful to my noble friend Lord Norton of Louth for adding his name to Amendment 25. I beg to move.

[Lord Lipsey]

My Lords, we are all grateful for the opportunity given to us by the noble Lord, Lord Lexden, to address this subject this afternoon. I am also grateful to the clerks, because the letter from Simon Burton about the next set of amendments to come before us said:

“The bill has only two purposes—individual electoral voter registration and the administration and conduct of elections”.

I find it difficult to see how either rubric fits the amendment of the noble Lord, Lord Lexden. However, the clerks have assured me that it is in order. I look forward to studying their explanation of why this is so this evening, and I am glad that we are debating this amendment this afternoon. I also hope we shall debate the next amendment. I shall be relatively brief, but some of the arguments that have been put should be answered.

At the moment, expats keep the vote for 15 years and then, except for the military and those enumerated, lose it. The aim of this amendment is to extend that period.

Who are these people? There is a huge range of them: some are abroad because they are working abroad long term; others moved abroad to be with their friends and relations; others for the warm climate, or perhaps in a few cases for the cheap gin and tonics; and a few are tax exiles. However, of those who speak to us, I do not doubt their sincerity in wanting to keep voting. I remember in particular the firm lobbying of members of the Brussels Labour group, who wanted the vote to express their Labour and pro-European sympathies.

There is, however, one less obviously desirable reason why they are lobbying for the vote. There is a very well organised lobby which objects to the fact that, broadly, outside Europe British pensions are frozen. Expats in receipt of pensions reasonably think that, if they had representation in Parliament—if they had a vote for MPs—they would be more likely to get this changed. This is entirely understandable. However, we must understand that conceding this would not be favourable to the British taxpayer. My noble friend Lord Hunt of Kings Heath, when he was the Minister responsible in 2005, estimated the cost at £3 billion, which is more than enough to pay for the total cost of the recommendations of the Dilnot report, which would do so much for elderly people living here.

How much do they want the vote? As I said, there is a very strong lobby, but a fact that the noble Lord, Lord Lexden, mentioned makes me a little sceptical. There are estimated to be some 5.5 million Britons of voting age living abroad but in 2011 only 23,388 of those registered to vote—under 0.5%. If the people who have left only quite recently are not bothering to register, how many of the people who have been gone for 15 years or more are clamouring at the door for us to concede it?

This debate is not the first time that Parliament has examined this matter; there was a Question for Short Debate in this House. However, the main document referring to it is a 1998 report from the Commons Home Affairs Committee. That was some time ago, but the argument has not changed much since. Far from recommending an increase, that committee recommended that the period should be reduced to five years. It has not been put into effect but that was its recommendation.

I looked at the evidence put forward to that committee. I want to put the case as it was put to the committee by Professor Robin Blackburn, one of our foremost constitutional experts. He spoke of the absurdity of extending the franchise so that,

“an expatriate living hundreds or thousands of miles away, for the duration of a period exceeding a whole generation, carrying memories of British politics in the past and with little or no personal knowledge of contemporary issues in the constituency where he or she used to live, can influence the election of the government of a country to which he is not subject and to whom he or she may be paying no taxes”.

In a nutshell, you cannot have representation without taxation. I rest my case.

15:30

[Lord Tyler]

My Lords, I listened carefully to the eloquent case made by my noble friend Lord Lexden, but I want to speak briefly as a former Member of the House of Commons and one who was devoted to his Cornish constituents.

One of the benefits of the single-Member constituency system that we have is that it provides a very special local link between each area and one Member of Parliament. I have heard the noble Lord, Lord Lorton of Louth, speak eloquently in support of that principle, so I am surprised to see him endorse this amendment in its current form. It is true that the countries in the European Union that my noble friend Lord Lexden cited all have different electoral systems; they do not have the same direct link with the individual constituency as we have. I want to put the debate about overseas electors in that context.

If an MP’s primary role is to represent his or her area, and the constituents within it at that time, how does that square with a proposal which would see him or her representing people who live perhaps thousands of miles away in a very different economic and social context? And should we really equate in value the vote of someone who has departed—some would say deserted—this country for 15 years or more in favour of the Spanish sunshine with that of a British soldier currently serving his country in Afghanistan? That would be the effect of the amendment.

In 2020, it will be 15 years since I retired from the other place—in that respect, I sort of left North Cornwall then. It is surely beyond the limit of what is reasonable to ask my excellent successor in North Cornwall to represent after 2020 people who left that constituency as long ago as I did.

I accept, as my noble friend said, that there is some validity in the notional principle here about taxation without representation. In that connection, perhaps we should look at the system used for French national elections, to which reference was made, where representatives of a number of special “overseas” constituencies are elected in national elections by French voters who live abroad but who still somehow have a stake in French society. If more than 76,000 electors registered for such a constituency, it would justify under the previous legislation that we passed in your Lordships’ House having that separate constituency, but we are not in that position. However, that would be much less arbitrary than marrying people in perpetuity to an area with which they have had no direct connection for more than 15 years.

It has been asked whether there should be taxation without representation. Well, perhaps we should also think about representation without taxation. Why should someone who has lived on the Costa del Sol for the past 15 years still vote by post in local elections and therefore influence the local level of council tax in Cornwall for residents of Coads Green or Crantock in my former constituency?

Those of my overseas friends who have urged this change may come to regret raising this issue; they should be careful what they wish for. If all those overseas who have retained the right to vote in the United Kingdom in recent years now find themselves having to pay council tax, higher VAT or fuel tax, or even additional taxes imposed by the devolved Assemblies, the proposers of these amendments may not be as popular as they apparently are with overseas voters at the moment.

Meanwhile, I am particularly alarmed by the proposal under Amendment 54 in the name of my noble friend Lord Lexden for overseas citizens to be able to vote online. While that same convenience is not afforded to our own fellow citizens in this country at the moment, it would seem extraordinary to extend it to those people. As we know from previous experiments, there are real problems about that proposal anyway, quite apart from its unfairness, because it could raise a major risk of fraud.

For those practical reasons, we on these Benches ask my noble friend the Leader of the House and other Ministers to take the problem of taxation without representation seriously, of course, but also to find a solution which is less invidious and which properly recognises that our current system of single-Member constituencies makes it extremely unfair to introduce this particular proposal in this form.

[Lord Anderson of Swansea]

My Lords, as one would expect, the noble Lord, Lord Lexden, made a cogent and well researched point in favour of effectively extending the timeframe not only beyond 15 years but perhaps indefinitely, so long as one can still claim British citizenship. Therein lie various practical problems, which I will come to in a moment.

My noble friend Lord Lipsey said that of the 5.6 million overseas voters only 23,000 currently take advantage of that, which suggests that the demand is not very great. The noble Lord, Lord Tyler, made the point about the key principle in our country of representing a constituency and those who live within it. We await with interest the result of the determination of the European Court of Human Rights, but I recall discussing this problem with a representative from the country in the European Union which is probably the closest to us—that is, the Republic of Ireland. A friend who was a Senator from Ireland said, “Well, think of all the Irish people who are overseas, the Irish diaspora. If we were to give a vote to them all, there would probably be a Sinn Fein Government in Ireland”. That is the point he was making.

Clearly the intention is obvious—to extend the vote to as many overseas British citizens as possible. I shall be brief because there is an important debate to follow, but there are clearly technical problems and grounds of principle that make one feel very cautious about this proposal. The potential numbers have been mentioned, particularly as more people travel and work overseas. There may be British citizens in Australia, Pakistan, Canada, Bangladesh and of course in all the European Union countries. There is a great range of countries and it will be very difficult to check adequately the bona fides of those who claim citizenship and claim to be eligible to vote. How do we prevent fraud? Those problems will be formidable and there will be also be a great problem in checking whether people are still alive after their last declaration.

On the grounds of principle, I recall the debate in the other place in 1985 when there was a package of proposals. I concede that the length of time is arbitrary but there was a consensus result at that time. Now of course the numbers are very much greater and we have, as has been cited, the reverse of the Boston Tea Party—that is, representation without taxation. We cannot extend that totally because many of the British citizens living overseas will be eligible for British pensions and therefore they have some stake in this country. Perhaps it would be better to say “representation without a substantial stake in this country”? Everyone who is resident in the UK has that substantial stake and those who live for perhaps a very extended period overseas increasingly lose sight of this country and lose sight of any stake they may have in it. Therefore, their stakeholding in this country becomes less and less serious. I will not go any further save to say that in my judgment there are considerable technical problems in the proposal and there are also major obstacles of principle.

[Lord Deben]

My Lords, I intervene having heard the three previous speeches. First, to listen to a strong advocate of almost any electoral system except the first-past-the-post, single constituency arrangement, fight for this proposal was a surprise, particularly as the noble Lord will go on to support a misuse of the electoral system to ensure that we have an unfair electoral system for even longer. That is a peculiar case to put forward.

Then we heard the internationalist party explain how people who lived abroad might not understand what was happening in Britain. Sometimes I think that a number of people living abroad understand rather more clearly what is happening in Britain than some of those here who do not appear to follow the newspapers or the media very closely.

Then we heard the definition of how people voted. I must say to the noble Lord, Lord Lipsey, that those of us who have been elected to the Houses of Parliament know that the reasons why people in this country vote and the logic on which they make their decisions, people who have never travelled abroad, certainly would not meet the conditions which he put forward as reasonable conditions for anyone who is voting.

Then there was the argument that because we might find that people who are at the moment, in their view, penalised because pensions for which they have paid out of taxation and national insurance are, because of their particular place of residence, refused, that they might vote in a different way than that which the Government might like, that evidently is a reason to deny them the vote. That is the argument of totalitarian regimes down history. That is why people did not want the extension of the franchise in Britain. People said, “My goodness, if those who are at the moment misused are given the vote, they might object to that”. I find that an odd argument to come from any part of the House, but to hear it from the party opposite, which is about to say that some voters in this country are to have a bigger vote and more say for a longer time than would otherwise have been the case, seems to me to be an affront.

Although I have no particular view on this—I think that roughly speaking, what we have is perfectly reasonable—I hope that this House will take seriously the fact that we have now heard three speeches designed to say that people should not vote if by their voting they might do something which was inconvenient for noble Lords on either side and should therefore be refused the vote. That is precisely the debate that noble Lords are about to have, which is to say that because a particular reform proposed in this House today would give people a fairer vote but thereby might give a different result, we should not change the voting system to accommodate them. That is an attitude to democracy about which we should be ashamed. Our decision should be on what is fair, what is equal and what is reasonable. I happen to think that the present rules about 15 years more or less meet that, but the three speeches that we have heard show that some people are prepared to use the system to get a particular result rather than seeking to have a system in which the result is the decision of the public.

[Lord Wills]

I address myself briefly to the remarks of the noble Lord, Lord Deben, with which I largely agree. I think that the criterion should be that it is fair and reasonable. Incidentally, I do not think that taxation is an issue here; taxation has never been a criterion for voting in this country and it is not now. It seems to me that what is, to use the noble Lord’s phrase, fair and reasonable, is that those who have chosen in a significant way to sever their relationship with this country should, after a certain period, lose their right to have a say in the affairs of this country. What that period of time should be is a matter for judgment. Like the noble Lord, Lord Deben, I think that 15 years is about right.

However, I want briefly to raise one significant issue that I would be grateful if the Minister would address in his response to the amendments. There is one important group of expatriates who deserve special consideration—those British citizens who have chosen to dedicate their lives to the service of large and small international organisations, such as the United Nations. There seems to be an anomaly there. These are people who have chosen to give their lives to public service which takes them all over the world, doing a job which serves this country and the rest of the world very well for the most part. It seems to me that there is a case for making a special exemption for those groups of people. There are lots of practical problems with that. Defining the kinds of international organisations which can be brought within the scope of such an exemption is difficult and problematic. In the past the noble Lord, Lord Hannay, has championed the cause of such expatriates. However, there is a case for that group of British citizens to be considered separately, and I would be grateful if the Minister could address that in his response.

15:45

[Lord Norton of Louth]

My Lords, I will assume it is a case of leaving the best till last. I very much agree with the point that the noble Lord, Lord Wills, has just made. I have raised the issue before about people in that very situation.

On the point made by the noble Lord, Lord Lipsey, about the Long Title, the Long Title is that this is a Bill,

“to make provision about the registration of electors and the administration and conduct of elections”.

I would have thought that amendments about the registration of electors fall quite clearly within the subject matter of the Bill—unlike, I think, what is to follow.

I have added my name to Amendment 25, as my noble friend Lord Lexden mentioned, but I also support the amendments that he has brought forward. My noble friend’s amendments raise an important issue of principle. The noble Lord, Lord Anderson, was raising matters of practice, but there is a fundamental principle. It is perfectly clear that some British citizens live abroad because they wish to do so. Some live abroad because they consider that they have to do so. Most emigrants from these shores move abroad, as my noble friend said, for work-related purposes. Some will be working for British firms; some will be teaching English; some will be paying taxes in the UK.

The important point is that they are and remain British citizens. So long as they remain British citizens, I see no reason why they should be disenfranchised. If they no longer feel any connection with the United Kingdom then it is open to them to seek the citizenship of the nation in which they reside. The fact that they chose to remain British citizens should not be dismissed but rather regarded as an asset for this country. British citizens are often important ambassadors for the United Kingdom. Just as overseas students in this country return home with British degrees and serve arguably as the most important source of British influence abroad, British expatriates are a notable source of British influence around the globe. Rather than discouraging our own citizens, and indeed overseas students, we should be treating them as an important resource in maintaining our influence on a global scale.

The principle is one that appears to be accepted by other EU member states. We are, as my noble friend has said, in a somewhat anomalous position. The largest number of British citizens who live in a non-English-speaking state reside in Spain, with the second largest number in France. Neither of those states disenfranchises its citizens who live abroad in the way that we disenfranchise ours. The link with constituencies is not particularly relevant in terms of the fundamental principle involved. Other nations, such as the United States, do not disenfranchise their citizens either and I see no reason why we should disenfranchise ours.

Like my noble friend, I have been struck by the number of British citizens presently living abroad who have been in contact to make the case for ending this anomaly. The fact that they feel intensely about the subject reflects their commitment to this country. They are not seeking any material benefit through this route—they are clearly proud to be British citizens and wish to retain the intrinsic feature of citizenship in the form of the franchise. At a time when we are having difficulty persuading many of our citizens at home to vote, it seems inappropriate to prevent citizens who do wish to vote from doing so.

My noble friend’s amendments therefore address an important issue, but they do so in a modest and ingenious manner. They are modest in relation to the principle and ingenious in relation to the practical problems involved. The Minister may claim that we need more time to reflect on the principle and that we should not rush to abolish the 15-year limit. My noble friend’s amendments would not abolish the limit but would rather allow the Secretary of State to introduce an order to extend the time period. There is thus time to reflect and build a consensus in order to extend the period.

There are practical problems, as no doubt the Minister will emphasise, in the process of registering British nationals who live abroad. My noble friend’s amendments seek to address those problems. The Minister may argue that they are not adequate, in which case, if the principle is conceded, the onus rests on the Government to come forward with proposals of their own. It is thus incumbent on the Minister to address the principle and explain why British nationals living abroad are treated less favourably than the citizens of other EU nations living abroad, and why we seem unwilling to acknowledge what constitutes a great British resource. We should not be encouraging EU nationals to desert their commitment to the United Kingdom but should rather be acknowledging that commitment. I hope therefore that the House will support my noble friend’s amendments.

[Lord Flight]

My Lords, I support my noble friend’s amendments. I have lived as an expatriate and, unless you happen to have parents resident where you want to register to vote, it is extremely difficult to get registered, particularly if people are busy with whatever their careers are.

My particular point is this: in most places, you are not entitled to vote in national elections wherever it is that you are living abroad. If such individuals cannot vote in the country of their nationality or in the country where they live, which is indeed the case with this country, then effectively you are denying them any major political vote whatever. No one seems to be concerned about that, but it is an unreasonable thing to do.

I was rather proud that in the most recent French elections London was, I think, the seventh largest-voting French city of the French electorate, as a result of so many French citizens living in London. Clearly there would have to be changes in the way that representation deals with expatriates if we were to adopt permanent voting by passport-retaining British expatriates, and the concept of the local constituency where they might have lived 10 or 20 years before does not work particularly well, but I suggest that for once it is worth while looking at how France runs its affairs because it deals rather more fairly with its expatriates than we do.

[Lord Brooke of Sutton Mandeville]

My Lords, my noble friend who moved this amendment is a historian, and I wish to add a historical footnote as well as to pay tribute to the chivalry of others involved in the exercise. In the late 1980s there was considerable embarrassment and concern that the amount of money being spent on parliamentary by-elections greatly exceeded the amount that agents, in signing for those expenses at the end of the election, were themselves putting down. It was a risk being run entirely by the agents, and all parties were involved in the problem.

I suggested to my noble friend Lord Hurd, who by coincidence I am sitting next to at the moment although I have not mentioned this to him, that it would be sensible if we managed to pass legislation briskly to correct this problem. He sensibly advised me that the only way in which that could be done would be if I could reach agreement with other parties, and it was sensible that that should occur. He referred me to the shadow Home Secretary, now the noble Lord, Lord Hattersley, who referred the matter to the noble Baroness, Lady Gould of Potternewton, who had some responsibility within the Labour Party for these matters. She and I had a meeting; we agreed that it was a problem and that, were we to recommend legislation to our respective Home Office Ministers and if there would not be a problem in getting it through the House promptly, then it was worth doing. We also determined that the same legislation should in fact increase the number of years from five to 20, and that was agreed between the noble Baroness and me.

I say that this is a matter of chivalry because she and I reached in private extremely rapid decisions on the matter that then went through the House of Commons in less than a month. I simply say that everyone has been involved in this story quite deeply in the past.

[Baroness Hayter of Kentish Town]

My Lords, this has been an interesting debate. I realise that a lot of people here are actually waiting for the main event; we are perhaps just the warm-up for that. As has been said, these amendments would, in effect, extend representation without taxation. They would allow people who do not, on the whole, pay council tax, income tax, value added tax or, presumably, any death duties here to continue nevertheless to elect people who decide on the level of those taxes. We also have to remember that this is not just about taxation; it is also about expenditure and these non-residents do not school their children here, use our health service, drive on our motorways or live day-to-day under our laws. Nevertheless, the amendments would give them the right to continue to elect the politicians who run our health and education services and who decide on our drink-driving laws, speeding laws and a myriad of other laws under which the rest of us live.

We supported a period of 15 years, by which people—basically those who tended to move away to study or work for quite long periods—were likely to return. We agreed that they should retain their democratic links here by retaining their votes. However, these amendments are largely about those who have left these shores for ever and do not participate in our civil life; they simply keep a UK passport. It is difficult to understand why they should continue to elect a Government under whom the rest of us pay our taxes and live with the consequences of our votes. Those people do not live with the consequences of theirs.

There is another major issue that needs to be considered. Should these amendments be agreed, these people would also be able to make donations to our political parties—a form of overseas subsidy that I thought we had outlawed. Section 54 of the Political Parties, Elections and Referendums Act 2000 allows UK nationals who permanently live abroad to remain on the electoral register for 15 years. By being on the electoral register, they are also categorised as permissible donors to a political party.

Following the controversy in 2007-08 around donations—in that case to the Conservative Party—the Political Parties and Elections Act 2009 was passed. Section 10 prohibits a registered party accepting a donation from UK nationals living abroad and on the electoral register if it is more than £7,500 in any 12-month period unless they become resident in the UK and pay UK income tax. That Act also requires such donors to make a written declaration to the Electoral Commission as to whether they satisfy the rules. However, this section of the Act has yet to be commenced; it comes into force on a date to be decided by the Secretary of State under a statutory instrument. The Government have indicated that they do not intend to commence this part of the 2009 Act, which means that those living abroad can continue to give any sum that they like as permitted donors.

These amendments would therefore permit all UK nationals permanently living abroad to give unlimited donations to our political parties. I cannot believe that this House would support that. The Electoral Commission has confirmed to me that the test of whether individuals are permissible donors is whether they are on the electoral register, and that includes overseas electors. Therefore, if overseas electors were to be able to stay on the register for longer than 15 years, they would remain permissible donors for as long as they lived and as long as their money held out.

There are practical issues. The Bill that the Committee is discussing will, if we fail to change it, mean that quite a few people who live in this country are going to fall off the electoral register. It seems extraordinary that we should not be turning our attention to those people, rather than adding to the register those who have long since ceased to live here.

This Bill is important; it is about moving to individual registration, but the only registration for those abroad at the moment is, as has been said, that they have a passport and get someone to certify that they are still alive. Here, those who do not have to go through all this may not realise that there will be all sorts of data matching and checks on their NI, and such issues. It would seem extraordinary if those living abroad could get on the electoral register easier than others.

It is hard to see why those who have left these shores for ever and do not pay tax but simply remember their old address and maintain a passport should continue to elect our Government. As of this moment, we have heard no compelling arguments to support these amendments.

16:00

[Lord Gardiner of Kimble]

My Lords, I thank all noble Lords for this wide-ranging debate. The amendments in this group seek to remove the 15-year qualifying period for overseas electors and enable the Secretary of State to remove or extend the qualifying period via secondary legislation. Amendments in this group also seek to extend the 12-month registration period for overseas electors and to enable overseas electors to register and vote online.

I know that my noble friend Lord Lexden feels strongly about these matters, and I am well aware of the continuing loyalty to the United Kingdom of so many who have lived and worked overseas for many years. Indeed, this was echoed by my noble friend Lord Norton.

The current 15-year time limit on overseas voting rights, which Amendment 25 seeks to remove, was approved by an earlier Parliament. Whether the time limit remains appropriate is a wider question, which remains under consideration within government. I refer to what the noble Lord, Lord Wills, said about overseas employees. British Council employees, for instance, already have that continuing right, as well as other sectors. Therefore, his point will be part of that continuing consideration. There are valid arguments on both sides which need to be carefully considered alongside any practical issues before any informed decisions can be taken.

In the mean time, we have already taken steps in this Bill to improve the overseas voting process. The proposals we are introducing to extend the electoral timetable for UK parliamentary elections will facilitate greater voter participation. As part of the move to individual electoral registration, I am happy to announce that we also plan to remove the requirement for a person’s initial application as an overseas elector to be attested by another British citizen who is resident abroad. This change will simplify the registration process for electors living overseas.

Moving to Amendment 26, we believe that the franchise for UK elections should remain set out in primary legislation. It would be very unusual to provide for a change to the franchise in secondary legislation. Proposals regarding the franchise are important matters which should always be considered by Parliament before they become law.

Regarding Amendment 27, it is important that overseas electors update their registration and verify their details each year along the same lines as UK electors. This helps to ensure that postal ballots are despatched to the correct address whenever an election is held and enables the electoral registration officer to verify that an overseas elector’s 15-year qualifying period has not elapsed. Allowing overseas electors to remain registered until after the next general election would lead to inaccuracies in the register and open up avenues for others potentially to use fraudulently another person’s registration or to vote despite being ineligible.

Amendment 28 would compel local authorities to provide an online facility for overseas electors to make the declarations necessary to register to vote. Providing a full online facility for applications to be made that is similar to the domestic system that we are creating could prove to be very expensive relative to the number of people who are registered overseas, largely due to the necessary security against fraud that would need to be built in. We have, however, not ruled this out in the medium term and intend to see how much uptake there is of the domestic online system before making a decision.

While I support the sentiment behind Amendment 54 —that steps should be taken to enable those based overseas to participate effectively in elections—I do not think a provision to vote online is the best way to facilitate participation for this group. As noble Lords are aware, electronic voting is not in use at any statutory elections or referendums in the UK. It was piloted and considered by the previous Government and in some other countries but it has not been pursued in the absence of evidence of improved turnout and because of concerns about security.

The Government are assisting overseas voters to receive and return postal ballot packs. The extension to the electoral timetable from 17 to 25 working days will benefit overseas voters. Given the measures already undertaken to assist postal voting, the proposals to simplify registration and the ongoing consideration of the 15-year limit on overseas registration, I ask my noble friend to withdraw his amendment.

[Lord Lexden]

My Lords, we have had a useful and productive debate on an issue of international as well as national importance. I am grateful to all those who have taken part and illuminated various aspects of the issue. At the centre stands the principle, so clearly stated by my noble friend Lord Norton of Louth, that British overseas citizens who want to take part in our elections, reflecting their enduring commitment to our country, should be entitled to do so, particularly since they are disenfranchised in the countries where they live. Voting should rest on nationality not on residence or anything else.

I listened with particular care to the Minister’s speech and noted one or two encouraging points. Overall, however, I listened with some disappointment. I shall read his comments in full and reflect on them further. For now, my Lords, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendments 26 to 28 not moved.

Amendment 28A

Tabled by

[Lord Hart of Chilton]

28A: After Clause 5, insert the following new Clause—
“Amendment of Parliamentary Voting System and Constituencies Act 2011
In section 10 of the Parliamentary Voting System and Constituencies Act 2011, in subsection (3), leave out from “(a)” to “and” and insert “not before 1st October 2018”.”

[The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)]

My Lords, as I think everyone already knows, I have received advice from the Public Bill Office that Amendment 28A in the name of the noble Lord, Lord Hart of Chilton, is inadmissible because it is not relevant to the Bill. It is therefore my duty, under paragraph 8.56 of the Companion, to draw the attention of the House to that advice and I readily do so. My noble friend Lord Strathclyde placed a copy of the advice in the Library on 31 October last year and I wrote an open letter to the party and group leaders, attaching the advice, earlier today. That advice from our clerks is clear and unequivocal and, as the Companion requires, I ask the House to endorse it.

It is rare that we find ourselves in this position and I therefore hope it will help for me to explain what happens next. We are, essentially, in the hands of the noble Lord, Lord Hart of Chilton. There is no separate Motion or vote on the question of admissibility. When I sit down, it is for the noble Lord, Lord Hart of Chilton, to decide whether to move his amendment in the light of the sense of the House. When my predecessors have been in this position—and that has not been often; just three times since 1999—the amendment has, on each occasion, not been moved. If the noble Lord, Lord Hart, chooses to move his amendment, debate will follow and, no doubt, a Division. That Division will be on both the question of admissibility and on the substance of the amendment. For those of us who want to endorse the Clerk’s advice, the way to do so is to vote “Not Content” at the end of the debate for the sole and sufficient reason that we have been advised that the amendment is not relevant to the Bill and therefore inadmissible, irrespective of the substance of the amendment. Having explained that, I have to say that I regret that we find ourselves in this position at all.

My noble friend Lord Howell of Guildford asked a question in an earlier debate on this subject: why could the noble Lord, Lord Hart of Chilton, and his supporters not find a way to put their substantive proposal before the House that was consistent with our rules? A Private Member’s Bill could certainly have been drafted and delivered to the Commons between October and today. I very much regret that instead of using the procedurally sound approaches that are available, the noble Lord and other noble Lords who have put their names to the amendment are asking us to set aside our rules, which I suggest is the wrong thing to do.

The last thing I want to say is that for the House to consider this amendment today is the wrong thing to do in principle as well as in particular. The House itself is of course the only authority that can decide on the admissibility of an amendment. The Clerk’s role is to advise, and the House is the arbiter. We are self-regulating. But our system of self-regulation is based on the very few rules which we have set for ourselves in the Companion. It means that only we can enforce our rules; it does not mean that we do not have any. The Companion is clear that on this issue of the admissibility of amendments,

“it is expected that this advice will be taken”—

that is, the advice of the clerks.

It would be unwise for us to get into a situation where we try to change referee when we think that it is expedient. The amendment is not relevant to the Bill because the clerks say so, in accordance with the precedent. It is they and they alone whom we have entrusted with advising us impartially in these circumstances. Over the past week, I have looked at the precedent and, on every occasion that I can find in the files, the House has endorsed the clerks’ advice on the admissibility of an amendment. Although I am relatively new to this House, I care very much for our culture, including the courteous, consensual way that we have of doing our business. I think that it enhances our work, role and reputation as a revising Chamber. That culture depends on our respect for our rules and, on certain very rare occasions, on the professional referee in the form of the clerks. If we choose to set aside the clerks’ advice on this occasion, why not tomorrow? Why not next week?

Today, we are taking a decision that is not just about a particular issue but potentially about the whole way that we work. If the noble Lord, Lord Hart of Chilton, moves his amendment, I ask Members around the House this afternoon to set aside their views on the substance of the amendment and to endorse the clerks’ unequivocal advice. It is for the House to decide which is more important for us. I choose the latter and, if it comes to it, I will therefore be voting “Not Content”. This is a difficult moment for the House, but there is someone here who can help us out of our difficulty, and that is the noble Lord, Lord Hart of Chilton. At this last moment, it is still possible for him to rescue us from our difficulty and to say, “Not moved”. I call on him to do so.

[Lord Hart of Chilton]

My Lords, I should like to make one preliminary point which is to repeat that, in intending moving this amendment, as I do, I intend no disrespect to the clerks, for whom I have great admiration. Of course, I have written to tell them that. However, there is a serious, genuine difference of opinion about admissibility, which I believe should be subject to the view of this self-regulating House.

Accordingly, I rise to move the amendment tabled in my name, and in the names of the noble Lords, Lord Kerr of Kinlochard, Lord Rennard, and Lord Wigley, whom I thank for their support. The effect of the amendment would be to postpone the review of parliamentary constituency boundaries for one electoral cycle, and similarly delay the reduction in the number of Westminster seats from 650 to 600. It would ensure that the 2015 general election is contested on the basis of current boundaries. It would also provide a window of time to address the current deficiencies in the electoral register and the likely impact on its accuracy and completeness from the introduction of individual electoral registration. As the building block on which boundary reviews are being conducted, the status of the electoral register is fundamental to our system of representative democracy.

16:15

The amendment has two principal purposes. The first is to allow time for the new system of electoral registration to bed down and to allow for opportunities to test how far the register is complete and accurate. That is essential, because the register provides the raw data to be used by the Boundary Commissions in determining constituency numbers and, hence, constituency boundaries. The two are inextricably linked, because any inadequacy or flaw in the register feeds inaccurate calculations in terms of seat numbers and their boundaries. It has the potential to be damaging to democracy and to seriously undermine the coalition objective of political renewal and re-engaging with the public.

Throughout the Second Reading of this Bill in both Houses, and from many sides, there have been warnings that the register, whatever its policy, will not be sufficiently complete for its purpose. It is generally accepted that, currently, at least 6 million people eligible to vote are missing from the register. That is around 10,000 people—I am averaging the figures—in each constituency; it equates to a missing 88 Parliamentary seats, based on current averages. This is a serious problem for our democracy which must be put right. However, it is also clear that the changes brought about by the Bill, with the transition to individual electoral registration—for all its merits—will lead to a further large number of voters falling off the register. This would be an additional blow to democracy and to the accuracy of the raw data on which boundary reviews will be based.

Furthermore, the pattern of people who are missing from the register is not random. I have heard no one dispute the fact that among those missing from the register are likely to be the young, the very old, the disabled, those from black and minority ethnic communities, those living in areas of high social deprivation and those in private rented accommodation. Some of those groups are already the most marginalised in society, and the shift to individual voter registration—without the proper safeguards which my noble friends on the Front Bench have been calling for throughout the passage of this Bill—will compound this democratic deficit. It is those groups from which even more will be likely to go missing.

The status of the register—its completeness and its accuracy—is extremely important. The Electoral Commission lists the consequences of a flawed register as being people being unable to vote, or wrongly registered at a polling station which is not in their local area; people not being contacted by candidates and political parties campaigning during elections, or campaigners finding that the people on the register are no longer there; people not being summoned for jury service; increased risks of electoral fraud; and, most important for my argument, people not being counted in setting boundaries.

The move to a system of individual electoral registration is welcome; it is due its time, and enjoys cross-party support. It is recognised that the shift may help to tackle problems of fraud. But it is also recognised that there are risks involved in the transition. As I have said, it is clear that the changes contained in the Electoral Registration and Administration Bill are very likely to mean that an additional large number of voters will fall off the register, at least in the initial transition period. The Electoral Commission warns that the introduction of individual electoral registration risks bringing registration rates down from around 90% to as low as 65%.

By the Government’s own admission:

“Individual Electoral Registration (IER) is the biggest change to our system of electoral registration for almost a century and it is essential we get it right”.

However, preliminary findings from the Government’s data-matching pilots, using DWP data to confirm people’s entries on the electoral register, show a success rate of around 70%. However, looking in more detail at the 14 pilot areas, some returned match rates that were as low as 55%. The Government have judged this to be a good starting level of registration for the transition, but that is a 70% success rate based on a register which we know is already missing 6 million eligible voters. Put shortly, the shift to individual electoral registration risks disenfranchising millions of British electors. My amendment allows time for checking and, if necessary, taking action to put matters right.

My second reason for this amendment is that there is a crisis of uncertainty and confusion in terms of the administration and conduct of the next general election arising from the ongoing but seemingly moribund boundary review. The state of limbo in which that review currently exists is both wasteful of public resources and damaging to democracy. The Deputy Prime Minister has stated repeatedly that the Liberal Democrat Party will not be supporting the boundary review proposals when they come to the other place for voting in the autumn of 2013 and that,

“we are not going to introduce the changes ahead of the general election in 2015”.—[Official Report, Commons, 16/10/12; col. 146].

However, the Leader of the Conservative Party, the Prime Minister, has vowed to plough on with the planned timetable for the boundary changes. Reacting to a statement by Mr Clegg in August, the Prime Minister insisted that the boundary change vote would go ahead. The coalition’s mid-term review published last week pledged that:

“We will provide for a vote in the House of Commons on the Boundary Commission’s proposals for changes to constituencies”,

and yesterday’s Sunday Telegraph reported that Mr Cameron remains “absolutely committed” to boundary reforms and is personally determined to press ahead with the policy. This represents a significant confusion at the top of the Government which is damaging to democracy and once again undermines attempts at restoring public trust in our political system.

Certainty is needed now because it is right that the public should know as early as possible which constituency they are in, and therefore who their candidates are to be, and what they are doing and saying. This is a key element of accountability in our democratic system. Under the current proposals, voters might know neither their constituency nor their candidates until a little over a year before the next general election. The connection between an MP and his or her constituents is probably the most important element in a healthy democracy. That connection is being challenged by this impasse. The continuing uncertainty about boundaries is having a chilling effect on selections, planning and the distribution of resources. It is also inevitably going to be a source of concern and distraction for sitting MPs who should otherwise be focusing on their central role of representing the people who elected them.

Achieving a conclusion and stopping the boundary review process now will also save significant amounts of public money being wasted on a process that appears to be doomed. Government figures released at the end of last year show that the Boundary Commissions for England, Scotland and Wales have so far between them spent around £5.8 million on the current review and related purposes, with a further likely expenditure of £3.8 million before the end of the review. So this amendment provides a practical solution to the political difficulties and confusion that confront us. It is not a wrecking amendment; it postpones the proposals for boundary reform by one political cycle. It also affords the time and opportunity to check the results of the new system of individual registration, the biggest change in the franchise for 100 years, to ensure that the register is not simply accurate, but complete before it is relied upon by the Boundary Commissions for future boundary reviews.

In a democracy nothing is more important than to ensure that those who are eligible to vote are enabled to do so. If the fountain or well of democracy is tainted, so too is democracy itself. I beg to move.

[Lord Rennard]

My Lords—

[Lord Forsyth of Drumlean]

My Lords—

[Lord Elton]

My Lords, I really was up first and I merely want to ask the noble Lord this question. He has made a very moving and appealing speech. Before he sits down—

[Baroness Anelay of St Johns]

My Lords, I appreciate that this is of great interest to many noble Lords in the House. I remind noble Lords that we are in Committee and therefore the device of saying, “Before the noble Lord sits down” is not necessary. Of course Peers may ask the noble Lord who moved the amendment—the noble Lord, Lord Hart of Chilton—questions. He is at liberty either to answer them as part of an exchange in Committee or to answer them later. Therefore my noble friends Lords Elton and Lord Forsyth will be in order when they next ask the question. They were out of order when they tried to prevent the Lord Speaker from putting the Motion.

[Lord Elton]

My Lords, the noble Lord has made a moving, interesting and in some ways compelling speech, but he omitted the prior question. He has not answered any of the points made by my noble friend the Leader of the House and has given no reason for riding roughshod for the first time for decades, if not centuries, over the advice of the Clerk, upon which the smooth running of the House depends. I do think he ought to give us his reasons for so doing.

[A noble Lord]

The noble Lord does not have to reply.

[Lord Hart of Chilton]

Well, I shall. The relevance comes as a result of the Boundary Commission’s work deciding numbers and constituencies upon the raw data from the electoral register. As I have said, if the electoral register is wrong and produces wrong data then the Boundary Commission and its findings in terms of constituencies and numbers will also be wrong. That is the relevance.

[Lord Forsyth of Drumlean]

My Lords, I apologise for getting the procedure wrong. My point was rather similar to my noble friend’s. The noble Lord has given by way of response, as a justification for riding a coach and horses through our procedures, an argument about the Bill and its provisions. What is at stake here is not whether his opinion is different from the Clerk’s, but that our convention has been that we accept the Clerk’s advice. Can he explain why he is prepared to ride roughshod over that, with all the precedents that it creates and the difficulties that it will cause for the House, which is nothing whatever to do with the substance of the Bill?

[Lord Hart of Chilton]

I explained, I hope, a moment ago why what I am saying is relevant to the particular proposals of the Bill. It is for the House to decide its procedure. In the sense that I have found it completely compelling that it is relevant, it is for the House to decide, in due course, what the outcome of the debate should be. If the view of the House is that what I have said is irrelevant, out of scope, nothing to do with the Bill at all, then the voting will take place accordingly. If, however, there are people——and I suspect there are many—who agree with me then they will vote to the contrary.

[Lord Rennard]

The four Members from different parts of the House who signed the amendment may all have slightly different arguments to make about why we each support it, but we are all agreed that the electoral register on which the current boundary review is taking place is not really fit for that purpose and that the current review of boundaries should therefore be postponed.

This issue was the subject of fierce debate during the lengthy passage of the Parliamentary Voting Systems and Constituencies Bill, with many noble Lords saying that it was not fit for purpose then. However, most of us relied on the best evidence available at the time that the electoral register contained the details of 92% of the people who should be included on it. Since then, however, work done by the Electoral Commission, commissioned and paid for by the Cabinet Office, shows that across the country, only about 82% of the names that should be included on the register are presently on it and that there are wide variations between different areas. For example, in the London Borough of Lambeth, only about 73% of the names that should be there are on the register.

This electoral register provides the basis for boundary reviews, and it is now clear that, if we want to have equal-sized constituencies, we must have an electoral register for which every possible effort has been made to make it as complete and accurate as possible, and that special efforts must be made to tackle underregistration in some areas if that objective is to be achieved.

16:30

[Lord Naseby]

As a former leader of the London Borough of Islington, which is very similar to Lambeth, I can say that the electoral register over time has never been more than 70% to 75% accurate. What magical qualities are there now that will change the situation in boroughs that have a transient population, always have had and always will have?

[Lord Rennard]

Those of us who have followed in great detail the Committee proceedings on this Bill will know that I have argued at length, together with other noble Lords, for a large number of measures that could greatly improve the accuracy and completeness of the electoral register, particularly schemes of data matching and data mining, which would enable public and private databases—

[Lord Cormack]

Was it this purity of motive that provoked the Deputy Prime Minister to make his off-the-cuff statement on 6 August?

[Lord Rennard]

The Deputy Prime Minister’s statement on 6 August was clearly not off the cuff and noble Lords to my left should have been aware of what he was going to say in the event of other issues which took place.

If I might proceed with some of my arguments, I would also like to say that for some of these Benches, another argument is very important. In the long deliberations on the Parliamentary Voting System and Constituencies Bill, we considered the relative effects on the power of the Executive and Parliament of reducing the number of MPs from 650 to 600. My party has always considered the need to reduce the number of MPs in the context of issues such as greater devolution and decentralisation, and the reform of your Lordships’ House. Not all my noble friends behind me will agree on some key aspects of Lords reform, but we all want to see an effective second Chamber able to hold a Government, of any party, to account. The failure to achieve—

[Baroness Browning]

I am concerned at this linkage between Lords reform and the measures that the noble Lord is now espousing. I took the effort over the weekend to read 22 Days in May, by our colleague David Laws, who was part of the negotiations. In the book, I found nothing in those negotiations that links Lords reform with boundary changes.

[Lord Rennard]

My Lords, the constitutional package that resulted from those 22 days—or however long it was—of deliberation clearly linked together many aspects of constitutional reform. If I may be allowed to develop my argument, I am suggesting that there is a clear link between the accountability of government to Parliament and the number of MPs. It is the view of my party that the failure to achieve any measure of reform at all here means that the hoped-for increased ability to hold the Executive to account will not happen. It may even decline as the Prime Minister prepares to make many more nominations to this House.

With the so-called payroll vote approaching half the membership of the government side of the House of Commons, the power of government to control Parliament is effectively increased. I believe that the opposite should be the case. This is, therefore, not the right time to reduce the ability of the House of Commons to hold the Executive to account by reducing its membership. There are no signs that the size of the Government’s so-called payroll vote will be reduced and coalition government probably makes it less likely. Many in my party take the view that the reduction in the number of MPs proposed in the current boundary review should not take place without reform that would strengthen the legitimacy of this House.

The media would make too much of two coalition parties going into two different Lobbies today. But in countries across Europe where coalition is much more the norm, this is not so unusual and people understand that different parties vote in different ways on some issues, while agreeing on packages of measures where they can find agreement on what they both consider to be in the national interest.

On the whole package of constitutional reform set out in the coalition agreement, it was not possible to deliver what was promised in that agreement and in the gracious Speech following the general election. So my noble friends to my left should not be surprised that we are where we are today. Noble Lords who have followed our many debates on electoral registration will know that my consistent aim—and that of my party—has been to improve the process of electoral registration so that we have a system fit for the purpose of conducting elections and reviewing boundaries as and when required. The question that now must be considered is what is the link between the boundary reviews and the process of electoral registration being considered in this Bill.

It seems to me that the issues of electoral registration and boundaries are inextricably linked. As my noble friend the former leader of the House, Lord Strathclyde, stated when the Parliamentary Voting System and Constituencies Bill was debated,

“the boundary review will be based on the electoral register in force at the time of the review”.

He pointed out that all:

“Previous boundary reviews have used the electoral register”.

He also relied on the fact, which we now know to be incorrect, that,

“the registration rate in the UK is between 91 and 92 per cent”.—[Official Report, 26/1/11; col. 1040.]

If the Bill that we are currently considering is passed, we will soon have a very different electoral register—one that, according to the aims of all Ministers, should be both more accurate and more complete. It is right that we use the new registration system for the next review of boundaries.

In considering the scope of the Bill, I too have great respect for the advice that we receive in this House and I note that it is for the House itself to decide on the basis of conflicting advice. However, I also have long experience of electoral registration and administration issues. I need hardly point out that elections simply cannot be conducted without a process to determine constituency boundaries and that this amendment is about the timing of that process. It is an integral part of the process by which boundaries are revised and why the amendment is highly relevant.

I thought long and hard about the Clerk’s advice and alternative legal opinions. It seems to me that even if electoral registration and boundaries were not considered to be connected, this Bill could not be considered to have only one or two simple purposes— the basis of the view that the amendment may be out of scope. It is clear to many of us that the Bill is about more than one or two things, since it actually covers at least eight areas: first, individual registration; secondly, the timetable for elections; thirdly, polling stations and district reviews; fourthly, the performance of returning officers; fifthly, emblems to be used on ballot papers; sixthly, the right of police and community support officers to enter polling stations; seventhly, alterations to the postal vote regime; and eighthly—and relevantly—repeal of existing powers for a centralised, national electoral register.

This means that the Bill is open to this amendment and, with good reason, we on these Benches support it.

[Lord Crickhowell]

My Lords, as my noble friend the Leader of the House has reminded us, the Companion states in specific terms that it is expected, in the circumstances that have arisen, that the Clerk’s advice will be followed. He was absolutely right in the warnings that he gave about the possible unintended consequences of the actions now being taken. That seems to be one powerful reason for rejecting this amendment. It is not a sensible way to change the conventions and practice of the House.

I want to concentrate on a second reason for opposing the amendment, although I will say this about the comment made by the noble Lord, Lord Hart, about the information being incomplete and the register being inaccurate: of course, it is freely acknowledged that under the present arrangements the information is substantially out of date and often very substantially incomplete.

Last Wednesday in the Constitution Committee, I questioned the Deputy Prime Minister on the subject that we are now debating: the implementation of the Parliamentary Voting System and Constituencies Act. I do not refer to this exchange with any great expectation that I can persuade my Liberal Democrat friends to abandon their stated intention to support the amendment but because I think that noble Lords in other parts of the House should be clear as to why they are being asked to act in the same way.

Both in our committee last Wednesday and in the Political and Constitutional Reform Committee of the other place on 13 December, the Deputy Prime Minister made it quite clear that his decision had absolutely nothing to do with merit and was entirely due to a political judgment that the implementation of this measure must be postponed to keep,

“the overall balance of the packages of the things that we included in the Coalition Agreement”.

He rejected my opinion that the balance argument did not hold up and that a desirable Bill should not be dropped simply because the public had given “a big thumbs down” to the measures or because he had not persuaded the House of Commons that the House of Lords Reform Bill was a good Bill. He equally firmly rejected what I described as my “old-fashioned” point of view that you should support or reject a measure because of its merits or lack of them.

The Deputy Prime Minister could not have been clearer about the merits of the Act. At Second Reading in the other place, he had identified,

“three problems with the current electoral map. Constituencies vary too much in size, they are based on information that is out of date, and there are too many of them”.

He provided specific examples of these grave discrepancies, saying:

“On the broken scales of our democracy, 10 voters in Glasgow North have the same weight as 17 voters in Manchester Central”.—[Official Report, Commons, 6/9/12; col. 36.]

Later, referring to the number of Members of Parliament that we ought to have, he said, “600 is about right”.

In both committees, the Deputy Prime Minister said that he was strongly in favour of the Act and hoped that it would be implemented, but that he wanted its implementation delayed for a full electoral cycle. He wanted that to happen for one reason only: because Conservative Members of the Commons had by their votes blocked his House of Lords Reform Bill. He repeatedly asserted that they had done so despite being elected on a manifesto commitment to reform the House of Lords. My noble friend Lord Lang of Monkton pointed out that the Government voted in support of the House of Lords Reform Bill and tried to ensure Back-Bench support and that the manifesto commitment was to seek a consensus, which is totally different.

In my view, we are not dealing with two measures that can be put neatly on each side of the balance scales, but with a whole string of measures covered by the coalition agreement, some of which, to use the Deputy Prime Minister’s own words, the public had given “a big thumbs down” to.

16:45

I think I was right when I said to him,

“you are saying that the next general election should not be fought on a fair basis. You have described why the present basis is not fair and yet you are arguing that we put it off into the next Parliament and that it is entirely reasonable that we should fight the next election on a basis that you have described, in eloquent terms, as being unfair and as producing more Members of Parliament than we need and unbalanced constituencies, some small and some large. That seems to me a most extraordinary position to attempt to argue”.

I repeat my final comment to him, which seems to sum up the issue before us this afternoon:

“You referred to the broken scales of democracy … What you are actually saying is, ‘We will not go ahead on the merits of this proposal; my party is insisting that the next election is to proceed on the basis of the broken scales of democracy’”.

This House should not allow that to happen.

[Lord Kerr of Kinlochard]

My Lords, I was sorry not to be in the House on Tuesday when tributes were paid to the departing Leader. What was said was very well said, I wish I had been there to say something too.

When my name appeared on this amendment, I was summoned by the noble Lord, Lord Strathclyde, to explain myself. There was a little bit of the headmaster’s study about it, but it was done with his customary style and charm. I will explain to the House why my name is on this amendment in exactly the terms that I explained it to the noble Lord, Lord Strathclyde. It is for reasons that are to do with Scotland. I believe that the largest threat at the moment to the constitutional settlement in these islands is the secession referendum in Scotland next year. The First Minister of Scotland is an extremely skilful politician, and one needs to be very careful of being complacent about where the public opinion polls are. The Scots, who are extremely good at grievances, have in the boundary changes and the changes to the number of constituencies, a very real grievance. Unusually for the Scots, the grievance is real. The reduction in the number of constituencies in England will be 6%, in Scotland it will be 12%.

When we were debating the Parliamentary Voting System and Constituencies Act, I argued several times that we should take due account when we were considering the size of constituencies and the size of the franchise—the 5% either way—we should take account of peripherality and sparsity, the distance from London, the difficulty of the MP’s job, and the difficulty of getting round the constituency if it was an enormous one. I remind noble Lords that the coastline of Argyll is longer than the coastline of France. If we look at the results, we see that leaving aside the four island constituencies, the two Scottish island constituencies, and the two on the Isle of Wight, the average Scottish constituency fetches up considerably larger than the average English constituency. This seems to be a perverse reading of the principles of peripherality and sparsity.

I do not wish to see this proceeded with in advance of the secession referendum in Scotland. It would be perpetually argued in the campaign that the numbers show Westminster less and less willing to listen to Scottish concerns and that defending Scottish interests requires secession, something I profoundly disagree with.

I remind noble Lords that the suggested reduction to 52 seats in Scotland is on top of the reduction from 72 11 years ago. The number went down in 2005 to 59, now it is to go down again to 52. The reason it went down in 2005 is to do with devolution. Once we have dealt with the secession threat, once we have secured the right result on the referendum, we need to come to the West Lothian question, but I do not believe that any of us in this House believe that the right answer to the West Lothian question is to make it more and more difficult for Scottish Members of the United Kingdom Parliament to do their job. I think that most of us believe that the right answer is to have Scottish MPs not voting in the Westminster Parliament on matters where they would be voting only on English, Irish or Welsh law. If we succeed, I think that we will have a chance to come back to the question. That is the moment when we should consider how many Westminster seats there should be for Scotland.

Urged by the noble Lord, Lord Strathclyde, and because I have great respect for the clerks, I have considered very carefully the question of relevance. I admit that I have considerable difficulty with a definition of “relevance” which is so narrow and so far removed from what the outside world would understand. The subject matters of the Parliamentary Voting System and Constituencies Act and this Electoral Registration and Administration Bill are inextricably intertwined. The argument was explained most clearly in our earlier discussion in Committee by the noble Lord, Lord Elystan-Morgan. The intertwining is particularly close during the present transitional phase as regards registration. Every constituency in the land is changed by the PVSC and it seems quixotic to use data which are so out of date and will be so radically altered by the new registration arrangements. The matters clearly are closely connected. We see from the quotation from Erskine May circulated with the Leader’s letter that amendments relating to the purposes of the Bill, if it has only one or two purposes,

“or touching on matters closely connected with them”,

can be considered as relevant. I cannot conceive of anything more closely connected than the issues that we are talking about now.

Were we in the House of Commons, and were we being guided by Erskine May, there would be no question but that this was an admissible amendment to the Bill. After deep thought, I am encouraged to stick to my guns by the advice that we heard from the noble Baroness, Lady Boothroyd, when she told us of her experience in handling such tricky matters in the other place. I was heartened by what she said. She urged us to rise to our responsibilities. It is for us to decide; we cannot delegate that task to the clerks to decide for us. It is for us to make up our minds, and it is in that spirit that I maintain my support for the amendment and hope that the Committee will vote for it.

[Lord Forsyth of Drumlean]

My Lords, I was intrigued as to why the noble Lord had put his name to this amendment. I was particularly intrigued, because of his background as a very senior civil servant whom we all held in very high regard, as to why he would go against the principle, which has been upheld in this House, that we accept the advice of the clerks. The noble Lord is arguing is that, where the players on the field do not like the result, they should have a vote on whether they agree with the referee. The noble Lord prayed in aid the noble Baroness, Lady Boothroyd, for whom I have even more regard—indeed, I voted for her as Speaker in the House of Commons—but the position in the other place is completely different. They have a Speaker, and I say to the noble Lord that, if we go down this road, we may very well end up with such a situation in this House, which would be a very bad thing indeed.

However, it never occurred to me for a moment that the noble Lord would bring Scotland into the argument. He takes as his title, Lord Kerr of Kinlochard. Kinlochard is at the bottom of the loch by which I live; I look at Kinlochard. I have to tell the noble Lord that the people in Kinlochard are not beset with the question of how many Members of Parliament represent them. In fact, their view of Members of Parliament is probably best not repeated in this House. To argue that the nationalists will use the legislation to exploit opposition to the United Kingdom is utterly ridiculous. Alex Salmond wants there to be no Members in the House of Commons from Scotland and to argue that he is going to be concerned by a reduction in the number of Members is ridiculous. To be fair to the SNP, it has always accepted that in return for more powers—which they call devo-max—there should be a reduction in the number of MPs. This is a wholly spurious argument. If the noble Lord had said that he was supporting this amendment because he thought it would help the Labour Party to win the next election, I could have understood the argument, but I have to say that his argument cuts no ice with me at all.

What is the origin of this? How have we got into this mess? Why are we faced with this problem? The answer is that the Deputy Prime Minister is cross. He is cross that, despite repeated warnings, his Bill—which was not properly thought through—crashed on landing in the other place. He said something quite extraordinary the other day. Before he had even heard the Prime Minister’s speech which is to be made in Europe, he said that he was going to go to Europe in order to translate the Prime Minister’s speech on Europe from double-Dutch to Dutch. What we are seeing today is that the Deputy Prime Minister is capable of going from cross to double-cross, because that is what this is. It is a double-cross.

[Noble Lords]

Shame! Withdraw!

[Lord Forsyth of Drumlean]

I certainly will not withdraw. There was a clear commitment which had nothing whatever to do with House of Lords reform. I have sat in this Chamber and have gone along with things that I did not like at all, such as the Fixed-term Parliaments Bill, the boundaries Bill, the coalition agreement and the deal on AV. All these things we went along with on the basis that there was a bargain which was in the interest of the nation. At no stage, as my noble friend Lady Browning pointed out, was the issue of House of Lords reform in any way attached to the question that we are considering today. The Prime Minister is being cheated by his Liberal colleagues.

I want to oppose this amendment because, to me, it breaches three important constitutional principles. The first is collective responsibility. We have Ministers in this Government who are Conservatives and Liberal. When I was in the Government, I understood that if you were a member of the Government and you did not agree with their policy, you resigned from the Government. You do not take the Queen’s shilling and then go through the lobbies and vote against the Prime Minister. That is what is going to happen tonight and it is an absolute disgrace.

The second principle is the one which I have talked about—maintaining the self-regulation of the House of Lords. The third is the integrity of the Boundary Commission decisions. I have told this House before that when I was Secretary of State for Scotland I had to sign a Boundary Commission report which destroyed my constituency as a Conservative opportunity in 1997. There were other factors in 1997 which may have added to my defeat. I freely acknowledge that, but it never occurred to me for a millisecond not to sign off that Boundary Commission report, because it is an absolute principle that people should not play politics with parliamentary constituencies and boundary matters.

[Noble Lords]

Oh!

[Lord Forsyth of Drumlean]

I know that noble Lords opposite are thinking back to Mr James Callaghan and all that, but that was a long time ago. In those days, there was a very big row about it as I recall. Of course, it could be argued that a deal was done by the coalition whereby they got their AV referendum, and I may say the Prime Minister risked the future of the Conservative Party as a party of government by agreeing to that. The Liberals believed that they could win it and the voters gave their answer; yet here today we have the Liberals still trying to gerrymander our constitution. That is what is going on here because they voted for the legislation which has been approved by Parliament that gave an instruction to the Boundary Commission. The right thing to do now is for both Houses to approve the Boundary Commission proposals. That has been the precedent and this is an attempt to gerrymander our constitution for political reasons because it has occurred to the Liberals that they might very well evaporate at the next general election. All they have to hang on to is the thought that they might be able to hang on with the benefit of incumbency. Of course, if we had fair constituencies, many of their people would not have that incumbency and they would lose their seats. So they are putting their own party interests before the democratic interest, dressing that up as some kind of defence of democracy and linking it with House of Lords reform.

17:00

On the subject of House of Lords reform, down the Corridor, PPSs in this Government were sacked because they voted against a Bill which was not thought out and was simply ridiculous. Those PPSs were sacked and told that their careers were over. I understand that tonight we are to see Liberal Ministers going through the Lobby voting against the Government. Are they to be sacked? I think not. I have a proposition. There must be among some of them a faint sense of conscience. If tonight they vote with the Government of whom they are members, they may make themselves a footnote in history, because they will be the first Ministers to be sacked for supporting the Government of whom they are members. They may even find themselves the answer to a Trivial Pursuit question in future.

[Lord Wigley]

My Lords, as one of the four Members whose name is attached to the amendment, I am aware of the feelings that some have harboured about the appropriateness of tabling such an amendment and, in particular, of pressing it when, in the opinion of the clerks, it might be out of order. I am therefore glad to have the opportunity to outline why it was and remains my feeling that the amendment is essential.

Two distinct issues are at stake. The first is whether the amendment is in order. If it is, the second is whether it should be passed. If a majority of Members of this House were to have indicated that they did not believe that the amendment was in order, I would of course have accepted that willingly. Unfortunately, we are required to debate both issues together, which, frankly, is rather unsatisfactory.

If passing the Bill made it impossible for the Parliamentary Voting System and Constituencies Act 2011 to be workable as intended when it was enacted, it would surely not only be in order but a duty on us to table consequential amendments to the Act either to make it workable or for parts of it to be repealed. It would be most unfortunate if our perceived Standing Orders prevented us from addressing such an eventuality.

We surely cannot detach the content of the Bill from its consequences. If the implications of passing the Bill were to make the constituencies Act incapable of fulfilling its original objectives, we should flag up those dangers to give the other place an opportunity to overcome the difficulty. If that is the case, it must be in order for us to suggest ways in which those difficulties can be resolved.

Therefore, central to the question of whether the amendment is in order is the basic issue of the effect of the Bill, if passed in its present form, on that legislation. I contend that individual registration would have far-reaching implications for the application of the constituencies Act in practice and, in the extreme, could materially undermine its purpose.

When he introduced the Parliamentary Voting System and Constituencies Bill for its Second Reading on 6 September 2010, the Deputy Prime Minister, Mr Nick Clegg, stated categorically:

“New rules will demand that every constituency is within 5% of either side of a single size”.—[Official Report, Commons, 6/9/10; col. 37.]

He described that as a “strict requirement”. That strict requirement is reflected in the Act as finally passed. Schedule 2 states categorically:

“The electorate of any constituency shall be … no less than 95% of the United Kingdom electoral quota”.

Mr Clegg acknowledged in that Second Reading debate that our existing registers are woefully inaccurate and that the inaccuracies are not geographically evenly spread. He cited inner cities and coastal areas as having particular problems. He put that forward as a reason for,

“accelerating the shift to a system of individual, rather than household, registration”.—[Official Report, Commons, 6/9/10; col. 40.]

The extent of the inaccuracy has been estimated as representing 6.5 million eligible voters not on the current registers. The Electoral Commission itself accepted a year ago that as many as 6 million people could be excluded. The level of registration of students is particularly bad. In the Commons debate at Second Reading of this Bill, the register in one ward in Aberystwyth—both a seaside and a university town—was cited as having only 56% accuracy.

The Government’s remedy for that is that the last canvass under the existing system will be up to the spring of 2014 and that thereafter there will be a transition to the new, individual registration system. The register on which the 2015 election will be fought will therefore be a hybrid. It will consist in part of people who have been registered under the old system, which Mark Harper MP, the Minister introducing the Second Reading of this Bill, described as a “carryforward” provision. He anticipated they would make up two-thirds of the new register and that people who had been registered individually one-third.

It is my contention that a register composed in that way will inevitably contain distortions. Some socioeconomic groups within society will respond more positively than others to the invitation to register individually. It would hardly be surprising if illiterate or less educated people were slower in responding to the new system. Older people might well respond on their own behalf but younger members of their household—who previously had been entered by the head of the household—might not respond, particularly if they are away at university. There is every likelihood that introducing individual registration for one-third of the register will have a differential effect in geographic, age and socioeconomic terms.

When individual registration was introduced in Northern Ireland, it initially led to a reduction of 11% in the registration levels; this was subsequently retrieved and higher levels were achieved, but that took time. This could not conceivably be accomplished before the election in 2015, a matter of months after the new system has been introduced for one-third of the register. It allows totally inadequate time for registration officers to undertake the checks, including matching every elector on the register against the DWP’s customer information database. The additional costs of introducing this change will amount to £108 million, reflecting the complexity of the transition. It is my contention that an accurate and comprehensive transition just cannot be achieved by 2015.

In order to underline the complexity of the process proposed by the Government for 2014-15, I draw to the attention of the House the words of the Minister, Mark Harper MP, at Second Reading of this Bill on 23 May last year. He said:

“At the end of the canvass, the EROs will send personally addressed individual electoral registration application forms to individuals who appeared on the electoral register produced at the end of the old-style canvass, who have not been verified individually and whom electoral registration officers do not believe to have moved … That will be a robust process”.—[Official Report, Commons, 23/5/12; col. 1181.]

For “robust process” I would suggest the words, “Herculean task”.

The effect of all this will inevitably be that the registers on which the 2015 election would be fought would be substantially different from those on which the Boundary Commission undertook its equalisation process. It is totally inconceivable in practice that every constituency will be within 5% of the UK quota. On the proposed new basis there are no fewer than 63 constituencies in Britain which, as things stand, are between 4% and 5% below the UK quota. A proportion of these will inevitably pass the 5% lower tolerance figure, and such constituencies will be in default of the provisions of Schedule 2 to the 2010 Act. The effect of the electoral registration Bill, as it now stands, will be to frustrate the purpose of the Parliamentary Voting System and Constituencies Act 2011.

The British Academy forum discussed these changes and, in an article last year arising from that forum, Professor Ron Johnston and Professor Iain McLean commented:

“The introduction of IER is likely to have a considerable impact on how representative constituencies are, and therefore on the fairness of the British electoral system ... The potential impact of IER is greater than it might otherwise have been because of new rules for the definition of constituency boundaries laid down in the Parliamentary Voting System and Constituencies Act 2011”.

They go on to warn of,

“an under-representation of urban areas in the new electoral map”,

and that,

“changes arising from the interaction of the new rules for defining constituencies with the introduction of IER will contribute to a considerable alteration in the nature of British representative democracy”.

That is why we should think carefully about the changes that this Bill will introduce and why we should ensure, to the extent we can, that in rushing the combination of changes we do not trigger a third act—the act of unintended consequences. Incidentally, there will also be consequences for the devolved elections in Wales in 2016, and no doubt in Scotland, if it is still part of the union.

The logic of the situation as proposed in the amendment is that the elections on the new equalised constituencies should not be introduced until after the Boundary Commission’s submissions, due on 1 October 2018. That would allow for the purpose of the Bill—for individual registration to be introduced in a coherent, timely fashion. It would allow registration officers to do their work without the frenetic pressure that the current proposals imply, and would produce a comprehensive register on a unified basis, not the hybrid register now being proposed.

The House of Commons needs to think again on this most fundamental matter, central to the working of democracy. Passing this amendment would give it an opportunity to revise the proposals in a coherent manner, and I urge noble Lords to support the amendment in the Lobby.

[Lord Dobbs]

My Lords, as the noble Lord, Lord Rennard, has said, this matter involves many different aspects, some of high principle, some of good practice and some of base politics. It should be about fair voting, of course. “One voter, one equal vote” is a formula so simple and so powerful that it has underpinned every democratic system that has ever been. That is why I believe in it, and others do too; many people have welcomed that concept.

Somewhere along the line, though, something seems to have changed, and a fundamental principle has somehow been sacrificed during the summer rains. Our Liberal Democrat friends have been wholeheartedly in favour of fair voting. I excuse noble Lords on the Labour Benches of that, of course; there was a time when their forefathers and foremothers stood shoulder to shoulder at Peterloo and marched with the Chartists through the streets of our cities—but then, as Mr Blair kept insisting, the Labour Party is not what it used to be. I wonder whether noble Lords can remember what the Chartists’ demands were. They were universal suffrage—

[Noble Lords]

Annual suffrage.

[Lord Dobbs]

Yes, annual suffrage, a secret ballot and, goodness me, equal constituencies. I would have been proud to have been a Chartist, as I am proud to be a Conservative. I know that this party seems a little fuddy-duddy at times, but this was after all the first and only party to elect a Jew as Prime Minister and the first and only party to elect a woman as Prime Minister, and I very much hope that we will be the first party to elect a black or an Asian as Prime Minister.

As was said earlier in the debate, the principle lies behind so much of what we promised and what has been done. Today it is not about the Conservative Party or the Labour Party—essentially, this debate is testing the principles of the Liberal Democrats. Last week at Question Time, my noble friend Lord McNally stood at that Dispatch Box and rounded on the noble Lord, Lord Bach.

[A noble Lord]

Where is he?

[Lord Dobbs]

That is a very interesting question.

Noble Lords will remember that it was to do with the legal aid order, and I am sure that they will remember his words. He said that although the noble Lord, Lord Bach, kept alleging that a commitment had been made, “It was not made”. That is a direct quote. I found that pretty stirring stuff. It certainly stirred me; I went in search of the evidence to back up the claim that constituency boundaries are linked to Lords reform. We have heard so much about that and, after all, that is the reason why we are here today. I went first, and naively, to the words of the Deputy Prime Minister. I am sorry; is my noble friend trying to intervene?

[Baroness Browning]

Yes. A section of David Laws’s book is relevant to what my noble friend has just said. In the negotiations that he attended, he reports,

“‘So what I am suggesting is this,’ said Danny”—

that is, Danny Alexander, who is now a Minister.

“‘We will support your proposals on redrawing the constituency boundaries to make voting fairer. But in return, we want your support for a referendum on a reformed first-past-the-post system’”.

It is very clear what the deal was.

17:15

[Lord Dobbs]

I am grateful to my noble friend for that intervention. There are so many quotes that one could bring to bear. Let me offer the House another one:

“votes should have an equal value, an equal weight, whether you are in the farthest reaches of rural Cornwall or in the inner cities, and whether you are in England, Wales, Northern Ireland or Scotland”.—[Official Report, 15/11/2010; col. 592.]

I hope the noble Lord, Lord Tyler, does not mind me quoting his words; they are very fine words and I agree with him entirely.

There is another one; I wonder whether noble Lords can guess who said this:

“It is barmy to have general elections on the basis of boundary reviews that, by the time they come to be tested, are nine years out of date”.—[Official Report, 16/11/2010; col. 764.]

I suspect that the earthiness of that approach gives the game away. I am sad that the noble Lord, Lord McNally, is not in his place to stand up and take a bow for it.

Let me go to the words of the Deputy Prime Minister, because he has talked endlessly on the matter, talking about the package of coalition reforms and the crucial linkage between Lords reform and boundaries. Speaking about the coalition’s commitment to Lords reform, he said it was,

“a commitment to deliver legislation, and indeed elections, come 2015”.—[Official Report, Commons, 3/9/2012; col. 38.]

It may seem petty of me, but if you go back to the coalition agreement and bother to read what it says on the tin, you will find that no such commitment ever existed. The agreement talked about many things—about setting up a committee and bringing forward proposals—but unlike many other parts of the coalition agreement, there was absolutely no commitment to legislation. There was no mention of whipping the vote and not a whisper of a date like 2015. I have the coalition agreement here. It is very clear about what it says and what it does not say—unless any of my noble friends on the Liberal Democrat Benches want to draw my attention to any other part of the coalition agreement which says otherwise. No, I did not think so.

However, the agreement does talk about legislation, and I am going to be petty and quote the wretched thing again. It talks about legislation—wait for it—

“for the creation of fewer and more equal sized constituencies”.

It is illuminating stuff—this little booklet—when you read it. There was the linkage, a very direct linkage, but not with Lords reform. The linkage was with the referendum Bill. It was in the same sentence; there was not even a full stop between those commitments, which is why I and my colleagues held our noses and eventually helped pass that referendum Bill. I personally crawled through that Lobby to support it. So where now is the other side of the deal?

Nevertheless, the Deputy Prime Minister keeps going on, and on, and on, about some linkage with Lords reform. Where did that linkage come from? In my search for enlightenment, I decided to put down a Written Question, in which I asked the Government,

“whether they envisage a direct link between proposals for reform of the House of Lords and proposals for the revision of constituency boundaries”.

I thought that was sure to clarify things, particularly as the Answer came from my noble friend Lord McNally. His signature was on it. I always enjoy getting notes from my noble friend Lord McNally; they are unfailingly kind and helpful, and this was no exception. This is what it said:

“These are different elements of the Government’s constitutional and political reform agenda and there is no formal link between them”.—[Official Report, 21/3/2012; cols. WA 167-68]

I may be too dull to understand what that means because it seems to me that the Answer is that there is no formal link. If my noble friend were here, I would thank him for his characteristic honesty. So I think we have reached the truth of this matter: there is no linkage and there never was. It is a distraction, an excuse, an alibi and an invention. The truth is that this is solely, sadly and cynically because the Deputy Prime Minister did not get his way on Lords reform. Now he wants to exact a little retribution. It is nothing less than a great political sulk.

Those on the Benches beside me are my noble friends. Of course they are; many of them are dear personal friends. They are men and women of principle, but right now you would need the telescope at Jodrell Bank to discover where those principles are hiding. I do not blame them. This one came from the top, but the Deputy Prime Minister has form. He tried to fix the voting system to his own advantage with the referendum, and he failed. He tried to fix the House of Lords, and he failed at that, too. Now, once again in pursuit of his own advantage, he is trying to fix the next election. I have to say that if he were a plumber, I would never let him anywhere near my bathroom.

The issue before us underpins all our freedoms: one voter, one vote, one equal vote. It does not get simpler than that. That is all we are asking for. The Liberal Democrats were asking for that too until ambition and their leader’s manipulation got in the way. A lot can be said about his manoeuvre. Perhaps we might use the language that he used about this House, the House of Lords. It was so unnecessary. We could say that his manipulation is cynical, illegitimate, disgraceful and, to use his own words, “an affront to democracy”.

This should not be about partisan advantage: we should be concerned about creating a level playing field for the voters. That is what fair votes are all about. That is what I hoped Liberal Democrats believed in. We fight for what we believe in with a passion but when in politics we come to fight for what we do not believe in, we hold ourselves hostage. This is not the coalition’s finest hour. I hope that it gets better than this.

I should warn my noble friends that when they go into the Lobby this afternoon, into what will become that hall of shame, they had better not do so with their heads held high. There is a better chance that they will be recognised as Liberal Democrats. That fact will be taken down, and at the next election it will be used as evidence against them in every constituency in this country.

[Baroness Boothroyd]

My Lords, as I have been mentioned in earlier exchanges, perhaps I might have a word, which will be very brief because I commented at length on this matter in mid-November. Not wishing to be tedious or repetitious, I shall make only a couple of points. If there was any success in the Speakership of the Commons during my period of office, much of it was due to the advice and support that I received from the clerks. I have to admit that there were a couple of occasions when I overruled that advice, one of which was against convention. But I did so because I thought that it was right to provide an opportunity for debate on a contentious issue which was of public interest and of concern. The roof did not fall in.

We have no such arbitrator with authority to make a decision in your Lordships’ House but we are often reminded that we are a self-regulating House. While, of course, we must examine the advice of the Public Bill Office and the clerk, there can be no authority that can in advance rule an amendment out of order. The bottom line is that the admissibility or otherwise of an amendment ultimately can be determined only by the House itself. When I spoke last year, I suggested that the Government allow this House to determine the issue for itself and I am delighted that we have the opportunity of so doing today.

[Lord Lipsey]

My Lords, I will be brief but I want to make one point on admissibility before turning to my main points concerning the substance of this debate. The noble Lord, Lord Hill, who we are delighted to see in his place, made a moving appeal to my noble friend Lord Hart to withdraw his amendment. All of us will have felt the force of that even if we cannot go with him.

However, at the end, he put it as if it was down to my noble friend Lord Hart to decide this and that no one else could have stopped the situation that we are in today. After our last debate, when this Bill was withdrawn by the Government, it would have been perfectly easy for Ministers to put down a Motion in another place or in this House saying that they wanted to proceed with the electoral review and that if it was lost they would agree that they would not introduce the orders in November. It would have been perfectly easy, perfectly in order and there would have been no difficulty about it. It would have been a clear decision.

They did not do so and we all suspect their motives for not doing so. As we read in the papers, the Prime Minister was determined to see whether he could get the various minority parties in the other place to back the change and carry it through but it was going to take a little while. That is fine, but we should be careful about getting on too many high horses on this matter without checking that our girths are properly tightened.

My second point concerns the substance. I have heard a lot about fair votes this afternoon and the Chartists and all that. When you draw constituency boundaries you have to weigh off various things against each other. Equal weight for every vote is important but so is community integrity and so is the need to disrupt as little as possible the relationship between a Member of Parliament and his constituents: when you take one lot away and put another lot in it takes time for the relationship to form. These are matters of balance: the balance was entirely wrong for 5%. In a sentence: Gloucester Cathedral now sits in the middle of the Forest of Dean.

Intrinsic to the original Bill were the combination of moving from 650 to 600, the decision that the boundaries were going to be changed after every single election and the dreaded 5%. If it had been 10% we would not have had any difficulties in the first place. I am not saying that this is why some Members of this House may have changed their mind, but the argument has moved on and it has got much worse for the proponents of these boundary changes.

In these debates we have often heard from the leading academics in the field—David Rossiter, Ron Johnston and Charles Pattie. They wrote on the subject in Parliamentary Affairs in 2012 and I need not add to what they said:

“Those recommendations—

that is to say the recommendations of the Boundary Commission which we are about to put into force if we pass the Government’s Bill unamended—

“were much more disruptive to the pre-existing constituency map than many had anticipated, and the outcome—should the proposed constituencies (or some variant of them) be finally adopted—will see much less continuity and reflection of community identities … As it stands, the outcome suggests that the underpinning theory of British representative democracy—that Members of Parliament represent places with clear identities—is being undermined”.

That is the constitutional case against this Bill and it is a case that has only come to light since we passed the previous Bill in those long winter nights two years ago. They also have something to say on the subject of individual electoral registration—the subject of this Bill—and tie individual registration closely with it. They say:

“If the introduction of Individual Electoral Registration is successful and the electoral rolls are more complete, the allocation of seats could change considerably”.

That is to say that the brand new registers we are getting under this are going to be another wholesale upheaval. As we get to grips with electoral registration and the electoral rolls are changed again and again and again as a result, there will be more upheavals to come. If we pass the Bill into law we will set a fire to the electoral map of Great Britain, to all the constituency and personal loyalties that have been incorporated within it and pledge ourselves to do the same thing again at every single election for all eternity. That is why I hope the amendment will be carried.

[Lord Martin of Springburn]

My Lords—

[Lord King of Bridgwater]

My Lords—

[Lord Falconer of Thoroton]

My Lords, I do not know whether people think it is time to draw the debate towards a close.

17:29

[Lord King of Bridgwater]

My Lords, I suspect that I am not the only Member of this House who finds this a thoroughly unattractive debate. I suspect that there may be many noble Lords on the other side of the House whose opinions I respect who will very much regret that we find ourselves in this position.

I say that for this reason. I was particularly struck because we started with a point about the inadmissibility of the amendment. It was interesting that the noble Lord, Lord Hart of Chilton, who has long service in this House and who must have worked closely with the clerks in his time in other capacities here, did not make any reference—as was pointed out in a number of interventions—to the desirability normally of respecting the view of the clerks. He just soldiered straight on, without dealing with that argument or, as far as I could see, with any respect for the basic issue regarding the Companion and the importance normally of respecting it.

I know that we have the advantage of a legal opinion from a QC, commissioned by the Labour Chief Whip, the noble Lord, Lord Bassam, which has been made available to the House. It of course gives a clear indication as to part of the motivation behind what we are facing here today. However, in looking at that legal opinion—and I am certainly not a lawyer—one point struck me regarding the issue of scope. What the amendment does is basically de-gut an Act that has very recently gone through this House and been approved by both Houses.

The point that I would simply make is that when the coalition put forward its proposals for these parliamentary Sessions, there were two Bills. The first dealt exclusively with parliamentary voting systems and constituencies—interestingly enough, the Parliamentary Voting Systems and Constituencies Bill. The first half of the Bill was to provide for a condition of the coalition, the AV referendum on parliamentary voting systems. The second half was to deal exclusively with constituencies. At the same time, a separate Bill was proposed to deal with electoral registration and administration. The Bills were distinct and separate.

There might be an argument that the amendment was perfectly acceptable to be introduced if the other matter had not just been dealt with by your Lordships and the other place as conclusively as was the case in the carrying of the Parliamentary Voting Systems and Constituencies Act. It is not as though the amendment is some minor technical addition to what was previously proposed. This is a major de-gutting of the previous legislation, enshrined in Part 2 of that Act.

I respect entirely the fact that the noble Baroness, Lady Boothroyd, has, very properly, made absolutely clear that this is a matter finally for the House to decide. I would add to that—and I know that she will accept this—that it is a responsibility that this House must take very seriously indeed and not treat lightly, as though it were a matter for political advantage on this occasion.

My second point relates to the guts of the amendment, which is to delay the boundary review. I do not know whether anyone in this House any longer believes that there is not gross unfairness in the present parliamentary boundaries. We have just fought one election in 2010 on boundaries based on data that were 10 years old. If the amendment stands, we will go into the next election with data that are manifestly older still. That is a certainty.

I was struck partly because a colleague, Lord Maples, whose absence from this House we much regret, showed considerable interest in this subject. I had not realised that he introduced a 10-minute rule Bill to the House of Commons five years ago to equalise the size of parliamentary constituencies. He said in his speech in this House that he wanted to call it, “A Bill to abolish rotten boroughs”, but the clerks would not let him. Perhaps they thought that that was going a bit over the top. However, he said that in 2005, the smallest constituency had 21,000 voters and the largest had 107,000; and that one Member of Parliament got elected on 6,000 votes—lucky chap—when it took someone else 32,000 votes to get elected. Those of us who had to fight for every one of those 32,000 votes knows what it feels like. Looking at the registers and the disparity between constituencies, one sees that in the last election when new boundaries were introduced on old data, there was a discrepancy of 18,000 between Banbury and Sheffield Brightside.

It is against that background that I simply say that of course there have been sincere speeches about the importance of keeping the registers absolutely up to date and making sure that the new arrangements being introduced are totally incorporated before there can be any idea of changing the constituency boundaries. However, the intervention of my noble friend Lord Naseby certainly bears out what I and anyone who has stood for election know very well—that the registers are never right. People are always missing from them. No one knows at this stage to what extent these changes will substantially alter constituencies, and it may be that the changes are not as big, but it is certain that everyone who votes for the amendment is determining that the unfairness, which has been generally recognised, published and accepted, will be maintained. This unelected House will then have determined and ensured that some votes in those constituencies will be worth more than others, and that the unfairness that existed in the 2010 election is even worse next time. What a position for this House to take. In the words of the noble Baroness, Lady Boothroyd, it is very much a decision for this House, and I hope that it will take that decision very seriously indeed.

[Lord Martin of Springburn]

My Lords, I, too, received advice from the clerks of the House and I valued it. At the end of the day, although I did not ignore that advice, there were occasions when I said, “I will go in another direction”. In effect, I did not accept 100% of what the clerks had said.

However, let me put this to noble Lords. One of the reasons that a clerk would give to me, to the Chairman of Ways and Means or to a Deputy Speaker for not selecting an amendment was that the matter had been aired fully on a recent occasion. This matter was recently aired fully. I am speaking not only about this amendment or this issue. I take an interest in Boundary Commission debates and in electoral registration legislation. I am speaking because I am interested in both issues. I spoke about Argyll and was accused by the Liberal Party of filibustering. The beneficiary of the Argyll constituency was a Liberal, not Labour, Member of Parliament.

The amendment says, “Do not implement the matter until 2018”. Therefore, what guarantee do we have that by the 2020 elections, which will occur at that time because of the five-year duration of a Parliament, the boundary commissioner will be able to finish his or her business and deal with the appeals that will take place? I concur with everything that has been said about electoral registers. That argument has gone on for as long as electoral registers have existed. The first argument has been, “They are inaccurate”, but that is unfortunately bound to be the case because of bereavement and transient populations. That is a legitimate argument to put before a boundary commissioner. I have been before Boundary Commission inquiries and said that the electoral register was inaccurate. I went before boundary commissioners when the famous poll tax was on the go and people were deliberately keeping their names off the register.

I would feel a lot more comfortable with the amendment if there was a Private Member’s Bill of one clause from the other place encompassing the same case as the amendment. At least we would then truly be taking on our role as a revising Chamber. We are talking about passing an amendment when we do not know the view of the Members of Parliament down the corridor. If it came from the other direction, however, we would at least have had the benefit of the Hansard report of the debate. Any of us who has been through boundary changes as Members of Parliament know that it is the last possible thing you can get through in a sitting. You can lose a colleague, or colleague can be turned against colleague. The noble Lord, Lord Forsyth, as the Secretary of State for Scotland, had to sign off a boundary commissioner’s review—a proposal made in good faith—knowing that it would have a profound effect on his political career. People down the corridor know what the boundary commissioner has already pulled out of the hat. Some are going to win and some are going to lose. That brings about the human frailties that it can bring about and we will not get the objective vote we would have got if it came from the other direction. We are in a very serious situation when we disregard the clerks without due cause. That is the important thing—without due cause.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord. Could he, with his experience as Speaker in the other place, clarify the comparison being made, which the noble Lord, Lord Kerr, referred to as persuasive—that somehow the Speaker’s ability to disregard the clerks’ advice at the other end of the corridor is analogous to this House as a whole disregarding the clerks’ advice? Surely that is not the case, because the convention in the House of Commons is that the Speaker’s ruling is not challenged.

[Lord Martin of Springburn]

The noble Lord is quite right. However, it is not only the Speaker who gets advice from the clerks; as I said, the Chairman of Ways and Means and the chairmen of committees do as well. It is done on the basis that of course, as the noble Baroness said, a matter can be given an airing. A Speaker can put forward an amendment as a safety valve for the House, to allow the matter to get an airing, while possibly knowing that the amendment will be defeated. However, as one noble Lord said, there is no way that a Speaker or his advisers would allow a situation where the guts were taken away from a piece of legislation that had previously been passed. If we pass this amendment, we are allowing someone to say, “I wasn’t happy with the last piece of legislation, so I will create an amendment and look for a near kindred piece of legislation to latch it on to”. That is not a good way to run a Parliament.

[Baroness Butler-Sloss]

My Lords—

[Lord Wills]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Baroness Anelay of St Johns]

My Lords, I think that it is the general mood of the House that it is time to hear from the noble and learned Lord, Lord Falconer, from the opposition Front Bench.

[Lord Falconer of Thoroton]

My Lords, I am obliged to the Chief Whip. Amendments are admissible in this House if they are, to quote the Companion,

“relevant to the subject matter of the Bill and to the clause or Schedule to which they are proposed”.

As is well known, the Public Bill Office has advised your Lordships that this particular amendment is not admissible. The view of the movers is that the amendment is relevant and therefore admissible. I share that view. The first question for your Lordships today is: how is a disagreement such as this to be resolved? The Companion specifies that the Public Bill Office advises on whether an amendment is admissible and it is expected that that advice will be taken. The Companion states that the decision on admissibility—again, it makes this clear—can ultimately be decided only by the House itself. It lays down a procedure; namely, it requires the Leader to put the advice of the clerks. While normally the advice of the Public Bill Office will give rise to no difficulty and will be plainly right—hence the expectation—if the mover of the amendment has good reason to contend that the amendment is relevant, and he or she has discussed it with the Public Bill Office and still holds that view, then he or she is entitled to put it to the House.

17:45

The movers of this particular amendment have discussed it with the Public Bill Office at length. They have taken the advice of a Queen’s Counsel experienced in the field who has concluded that the amendment is relevant. This is plainly a proper case in which it was right for the movers to allow the House to decide. I have read very carefully the letter from the Leader of the House—perhaps I may interject that I welcome him to his post and say how very much we will miss the previous Leader, whom I am happy to see in his new place—which proposes, in effect, that the House should always accept the advice of the Public Bill Office.

As the noble Lord, Lord King, says, we should always behave responsibly in considering the views of the Public Bill Office. We need a good reason to disagree. However, I respectfully submit that there is no convention—and it would be unwise to suggest—that we always accept that advice. This House has to decide what it considers relevant. In giving advice, the Public Bill Office is seeking to give effect to the will of the House. How can it do that unless from time to time the House discusses the issues of relevance?

The last time there was a full debate on relevance in this House was in 1968, when Lord Goodman proposed a particular amendment. It was debated by the Leader of the House, Lord Shackleton, who sat on this side, and the former Lord Chancellor, the noble Viscount, Lord Dilhorne, whose daughter is in this House, although I am not sure whether she is here today. The idea that it was improper to have a proper debate did not occur to any of the distinguished Lords who took part in that debate.

[Lord King of Bridgwater]

My Lords—

[Lord Falconer of Thoroton]

I will take interventions when I have finished this part of my speech.

The correct approach was accurately described by the noble Baroness, Lady Boothroyd. I will embarrass her by quoting what she said in November:

“For us, of course, there is no Speaker here to make that ultimate decision”—

namely, whether we can accept an amendment—

“We all know what the Companion tells us; it has been repeated many times recently in this House. But by its very nature, it is advice that is offered to us and it is only advice; it is only expected to be taken. It is not a command, nor is it written on tablets of stone. I put it to the Leader of the House that, as there is no individual in this House to make the ultimate decision, is it not for your Lordships’ House to make that final decision?”.

I agree with the noble Baroness. It completely reflects how a self-regulating House should operate. I want to make it clear that my disagreement with the views of the Public Bill Office in no way reduces my respect for those in that office. I have the greatest confidence in them; they serve the House very well. This House should not feel anxiety about debating and reaching a decision on an issue such as this. Again, the noble Baroness, Lady Boothroyd, got it right when she described her own disagreements with the clerks:

“But I took it in what I believed to be in the best interests of the democratic process, and to provide debate on a contentious issue of public interest and concern—and the roof did not fall in”.—[Official Report, 19/11/2012; col. 1623.]

Again, I respectfully agree.

Why is this amendment admissible? Relevance is the test. The language is different from that of the other place, but the slightly different approaches would usually achieve the same result. The rules exist to ensure that amendments to Bills are properly focused on that Bill and not on wider issues. There are no legally defined limits to what is relevant in this context; they are to be garnered from the approach of the House to previous amendments. The Public Bill Office rightly advised me, when considering this matter, to look at previous amendments which had been debated without any issue as to relevance being raised by that office. I was told that that indicated what is admissible since the Public Bill Office considers every amendment for relevance. With respect, I agree with the approach of the Public Bill Office.

Noble Lords will remember the Parliamentary Voting System and Constituencies Act 2011 which introduced a new system for fixing boundaries focused primarily on the number of registered voters in any place. Throughout the passage of that Act, which for these purposes deals with boundaries and the alternative voting system and not with registration, through both Houses of Parliament, amendments were tabled and debated that sought to delay the timing of the boundary review until such time as the level of registration of voters had improved. Concern was expressed on all sides of both Houses about the undoubted fact that there were unsatisfactorily low levels of voter registration—perhaps as many as 6 million people who should be registered were not. There was no substantial dispute on any side of the House that this was a problem that needed to be addressed. Neither the Public Bill Office in this House nor the clerks to the Speaker or the Speaker in the Commons regarded those amendments as either inadmissible or out of scope. The 2011 Act contains no provisions about registration.

This Bill speeds up the introduction of individual elector registration. Currently, the position is—

[Lord True]

My Lords, it was on this point that I had wished to intervene from the perspective of someone who spent 13 years in the usual channels. The question that the noble and learned Lord is putting is, I think, the wrong one. It is not whether the House can do it, but whether it is wise to be contemplating doing it. That was the point made most compellingly by the noble Lord, Lord Martin of Springburn. I would ask this directly of the noble and learned Lord: if it is not the clerks to whom we defer for advice in these matters, then to whom? If, as was said earlier, we are now going to establish a practice whereby any noble Lord can put the case that their amendment is a good one so why do we not take it, or worse, if we are expected to go to outside lawyers or QCs for advice on what is or is not admissible, would that not be a revolution in the way this House does things and would it not advantage those with deep pockets or political parties with access? Most of the rest of us in this House do not have access.

Is it not the case that the—

[Noble Lords]

Speech!

[Lord True]

We are in Committee, my Lords. Is it not the case that our clerks are uniquely experienced and uniquely dispassionate, and that their advice is available equally to all? Is it not better to stick with the system we have than the new, revolutionary approach being proposed by the noble and learned Lord?

[Lord Falconer of Thoroton]

My Lords, I am not suggesting a new and revolutionary approach. There is one group of people—namely, this House together—which has a better view than the clerks. I say that because the clerks are seeking, in the advice they give, to express the will of this House. I fundamentally disagree with the noble Lord, Lord True, that this is a change in practice. It reflects exactly what has been happening for many years. I refer to the debate in 1968 where the idea that it was in any way improper to discuss it was wrong. The consequence of being a self-regulating House is that when significant issues such as this one arise, ultimately it is the House that decides them. This is a classic issue which the House should decide.

[Lord King of Bridgwater]

The noble and learned Lord keeps citing the 1968 case. Is it not true that Lord Goodman then withdrew his amendment?

[Lord Falconer of Thoroton]

He withdrew his amendment at the end of the debate, making it absolutely clear that there was no support for the idea that solicitors should become High Court judges. That was the reason he withdrew it. However, as I understand it, the Leader of the House and the noble Lord, Lord Forsyth, have said that there is some convention that you should not move the amendment. The approach of the Leader of the House in urging my noble friend Lord Hart to withdraw his amendment, and as I understand it the approach of the noble Lord, Lord True, is that the right thing here is that the advice of the clerks, which I greatly respect, is not advice but a definitive ruling against which there is no appeal.

I have referred to the fact that amendments relating to registration were allowed to the boundary changes Bill. The obvious reason for that is that, in relation to a Bill about boundaries, it was accepted that registration is a vital building block in how to fix the boundaries. It is important, when applying the rules of admissibility, to show both common sense and consistency. The thing that really matters in relation to the new—

[Lord Wills]

Very briefly on this point of relevance, perhaps I may draw the attention of my noble and learned friend to Clause 16 of this Bill which, like this amendment, deals with electoral boundaries. It deals with the reviewing of boundaries, as does this amendment. Both Clause 16 and the amendment deal with the timing of the reviews, not their outcome. Does my noble and learned friend agree that that makes the amendment admissible in the context of this Bill?

[Lord Falconer of Thoroton]

I do not know if your Lordships have noticed, but it is my personal view that this is an admissible amendment because it is relevant. If you fundamentally change the system of registration—the Government have described the effect of this Bill as being the most important change to registration for 100 years—that is bound to have a very significant effect on the boundaries that are to be fixed for individual constituencies. The best analogy I can think of is this. Let us suppose there was a Bill to double the length of sentence for anyone given a sentence of imprisonment. Would the clerks or this House take the view that you could not have an amendment which said, “Before you introduce these longer sentences, make sure that you have enough prison places”? Would it be argued that because the subject matter of the Bill was sentencing, you could not deal with the issue of prison places? That is the closest analogy.

This is a situation where constituency boundaries are determined by the numbers of registered voters. If you are going to change the registration system, that is bound to have an effect on the boundary changes. What is the effect of the amendment? It would delay the boundary changes by five years, which does not mean that they must be changed in five years’ time, but that they must be “not before” a period of five years. The consequence of such an amendment would be an opportunity to look at the effect of individual registration. As has been pointed out by my noble friend Lord Hart, we already have pilots which suggest that there is a low rate of striking in relation to the new individual registration. That is what you would expect. Currently, household registration allows the head of the household to register everyone. The effect of individual registration, coupled with the need to prove that you are the person you say you are, inevitably makes the process more cumbersome. There are considerable benefits, but the effect inevitably will be to reduce the coverage of the electoral register.

In addition to those arguments, it is plain that we are in a situation of limbo because it is not clear upon what basis, in terms of constituencies, the election that is bound to take place by May 2015 will take effect. This is an admissible amendment. This is a relevant amendment. It is an amendment that this House can rule on. There are very strong arguments for delaying the introduction of the new method of registration because if you do not, you will end up with a substantial group of people, mostly the dispossessed, who are not registered and will thus take no part whatever in our democracy. I strongly advise the House to feel able to vote on this amendment and I strongly advise noble Lords to support it.

18:00

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I have thought hard if not long about how to respond to the debate on the amendment moved by the noble Lord, Lord Hart. I recognise that many noble Lords will have their own reasons for lending their support to one side or the other. Sometimes this may be a matter of conviction. Sometimes one may see party advantage one way or another. I am going to ask noble Lords to put all that to one side. Before I challenge some of the issues raised by the debate, I would like to focus the attention of the Committee on the implications of passing the amendment.

Some might say that this is an amendment conceived in mischief. I know and like all the noble Lords whose names are on the amendment, but I expect all of them will have to acknowledge that they have been disingenuous, if persistent, in seeking to include it in the Bill, for it seeks to postpone the provisions of an Act passed by this House and by Parliament less than two years ago. We should not forget the context in which the many measures for providing for constitutional change were brought before Parliament. Following the expenses scandal all parties recognise the need for change. The reduction in the size of the House of Commons and the provision for an immediate boundary review to be repeated in each fixed-term Parliament were designed to restore public confidence in the political institutions of which this House is a part.

This was the manner in which the House debated the measure. It was thoroughly argued into the early hours and indeed, memorably, through the night on one occasion. Issues that I am sure are fresh in noble Lords’ minds were raised, argued and resolved from the bandwidth of variation in constituency size, the historic overrepresentation of some parts of the United Kingdom and the need to reconcile that with geographical, local and historical ties. From the Tamar valley to the Isle of Wight to Orkney and Shetland, the Bill was passed. It is the law.

How stands the House should it now say, without good cause, that the provisions of the near-completed boundary review should not be implemented for the election for which they were designed? How stand politicians who argue this way? How stands politics as a consequence? Where does it put this House in the eyes of the people should the Committee choose to pass the amendment? We will not be seen, as we would choose to be seen, as the guardians of constitutional propriety or active above and beyond narrow interests and loyalties. No, we will be seen as being no different from the rest of them, motivated by hubris and cynicism. We have recently won time to demonstrate the strengths of the House. Indeed, it would appear from the comments of my noble friend who attended the Constitutional Committee that the future form of this House is the subtext as to why the amendment is here today, and I am replying to it. We should see the trap that has been laid.

I have listened to the arguments of those supporting the amendment. It is still not clear whether there is agreement on the ambiguity at the heart of it. The current review, based on the December 2010 register, is one for which current law provides. How does its deferment stand under the amendment? Is it to be kept on ice and used for the 2020 election, despite the fact that it will then be based on a register that will be nearly 10 years old or is the work to be abandoned and a new review used for the May 2020 election? Whatever, it is clear that in the absence of the current boundary review, it would be the old boundaries, based on a register as old as February 2000 as far as England is concerned, that would be used for the May 2015 general election.

[Lord Falconer of Thoroton]

I think it is clear from the wording of the Act that, as a result of the amendment, if there was a review with a boundary review date of 2018, then the register that would be taken would be 1 December 2015.

[Lord Taylor of Holbeach]

I am reassured that the noble and learned Lord makes that point, but that means that this particular boundary review has been a wasted effort in his mind. I would like to challenge why that is the case. This particular piece of legislation affects only individual electoral registration. It does not affect the boundaries of constituencies—certainly not for the next election. That lies in existing legislation that is not the subject of the Bill. If the Committee has had difficulty in addressing this issue, it rather proves the point of relevance. We have heard some marvellous speeches for and against individual registration of electors, which is the subject of the Bill before the Committee, but it is hardly going to be affected by this amendment because the 2015 boundaries are based on the 2010 register, which is already in existence and cannot be affected by a change of register for this occasion. That register has nothing to do with individual voter registration or the Bill.

There have been lots of contributions from all sides of the Committee about individual electoral registration and, in particular, criticisms of the transitional procedures. That is perfectly proper. That is what the Bill is about. The Bill is about the process of individual electoral registration. However, they are irrelevant as far as the amendment is concerned because it seeks to defer a boundary review that is based on the old system of registration, namely the 2010 register. That is why, I suspect, the clerks found it extremely difficult to find relevance in the amendment because it does not affect the subject of the Bill that is before the Committee of the House.

There has often been mention of the differing views within the coalition on the presentation and approval of the current review, which is now more or less completed. That may be so but, as the law stands, it is not the Government, or the coalition, that decide the response to the Boundary Commission; it is Parliament and it will have the final say. However, the amendment would deny this Parliament that opportunity by preventing the Boundary Commission finishing its work and so denying the House of Commons of this Parliament an opportunity to take an informed decision on the Commission’s proposals. Is it right that this House takes it upon itself to deny the House of Commons that opportunity? Herein lies the trap for those of us who believe in the unique contribution that this House can make to our parliamentary democracy and the delicate constitutional underpinning that lies beneath it. Noble Lords can, of course, ignore this and press ahead with their amendments. I hope they do not subsequently rue the day. Rather, I hope noble Lords will reflect further on where this amendment might put this House, and politicians and politics in general. I urge the noble Lord, Lord Hart of Chilton, to do so and to withdraw his amendment.

Should the noble Lord and his colleagues press on and seek the support of the Committee, I ask all noble Lords to think this matter through, as I have tried to do myself. It is a virtue of this place that I can address all the Benches and say that we in this House should be very wary of defying the will of this Parliament, as expressed in the Parliamentary Voting System and Constituencies Act. I certainly do not seek to argue that the elections to another place are no concern of this House or this Committee—the Bill we are discussing is all about that—but I do say that we fail in our constitutional function if we deny another place fairness of constituency size.

[Lord Rooker]

With respect, the Minister has now said, on about three or four occasions, that we are tying the other place. If this amendment is passed, it has to go to the other place for agreement. The other place can choose not to accept it—we are not forcing legislation on the other place. The House of Lords cannot force legislation on the House of Commons; the House of Commons must agree to this and may choose not to.

[Lord Taylor of Holbeach]

That is perfectly correct. I was just asking noble Lords to consider where that puts this House in its relationship with the other place. Where does it put this House to provoke and to seek to deny, at our instigation, the Boundary Commission whose review both Houses of this Parliament determined should take place and should apply to the forthcoming election? I think it quite remarkable that the noble Lord, Lord Rooker, seeks to pretend that there are not implications for this House in this particular amendment being passed. I think that there are and that it would be irresponsible of me not to advise the House that there are great dangers in this.

[Lord Davies of Oldham]

My Lords, how would the reputation of this House be damaged if the other place decided to follow exactly the position adopted in this House?

[Lord Taylor of Holbeach]

My Lords, it would be because we will have shown that we are not in a position to take advice from our clerks, that we seek to trample roughshod over the conventions of this House and that we are passing an amendment that is not relevant to the Bill that we were considering when we formed this Committee this afternoon. When we went into Committee, we were discussing a Bill about individual electoral registration. That is right, proper and the subject of the Committee, and there can be varying views on that. We were not seeking to overturn an Act, passed by this House less than two years ago, which provided for electoral boundaries for a forthcoming election. What we will in effect be doing is forcing the other House to reject our ill considered—in my view—and unwise amendment.

We began this debate with my noble friend the Leader of the House explaining that there are two issues at stake here: the inadmissibility of this amendment, which is indisputable, and the substance—

[Noble Lords]

Oh!

[Lord Taylor of Holbeach]

It is indisputable that the amendment is inadmissible. The House may overrule that, but it is inadmissible. The other issue is the substance of this amendment. The noble Lord the Leader of the House also explained that we would have to resolve both issues in a single vote. I would like to remind the House of just that. If the noble Lord, Lord Hart, wishes to press this matter to a vote, and noble Lords are inclined to support him, they will be forced to decide what their greater priority is: to support the substance of the amendment, and ignore the advice of the clerks or to uphold the advice of the clerks on inadmissibility and therefore vote to defeat this amendment.

If the noble Lord insists on pressing his amendment, I am clear where I stand. I will seek to uphold the advice of the clerks. I will therefore be voting against this amendment, and I urge all noble Lords who value the customs and practice of this place, from whatever part of the House they come, to do likewise.

[Lord Hart of Chilton]

My Lords, I have listened carefully to all the arguments put in this debate. I am afraid that I do not accept what the noble Lord has just said. I wish to test the opinion of the House and, in doing so, I repeat that there is no disrespect to the clerks. This is a genuine difference of opinion, for which this House must take the decision.

18:15

Division 1

Ayes: 300

---

Labour: 191
Liberal Democrat: 69
Crossbench: 23
Independent: 5
Democratic Unionist Party: 1
Plaid Cymru: 1

Noes: 231

---

Conservative: 181
Crossbench: 36
Ulster Unionist Party: 3
Independent: 3
Bishops: 2
UK Independence Party: 1

18:31

Schedule 3 : Civil penalty for failing to make application when required by registration officer

Amendment 29 not moved.

Schedule 3 agreed.

Clause 6 : Power to amend or abolish the annual canvass

Amendments 30 to 33 not moved.

Clause 6 agreed.

Clause 7 : Consulting Electoral Commission about proposals under section 6

Amendments 34 and 35 not moved.

Clause 7 agreed.

Amendment 36 not moved.

Clause 8 : Piloting of changes to the annual canvass

Amendment 37 not moved.

Clause 8 agreed.

Clause 9 agreed.

Clause 10 : Orders under Part 1

Amendment 38 not moved.

Clause 10 agreed.

Clauses 11 and 12 agreed.

Schedule 4 : Amendments to do with Part 1

Amendment 39

Moved by

[Lord Rennard]

39: Schedule 4, page 21, line 23, leave out “, so far as is reasonably practicable,”

[Lord Rennard]

My Lords, our Amendment 39 seeks to resolve concerns raised by the Electoral Commission that the wording in the Bill could weaken electoral registration officers’ existing duties.

It is welcome that the Government propose to add a duty to secure that,

“persons who are entitled to be registered in a register (and no others) are registered in it”.

This is effectively a duty to ensure completeness and accuracy, and I welcome that. However, we do not see the case for diluting that duty with a test that states,

“so far as is reasonably practicable”.

If those words were omitted, the duty would simply be subject to the existing test, which is to,

“take all steps that are necessary”,

making it far stronger. The Government argued at an earlier stage that the “reasonably practicable” test does not make any difference and that electoral registration officers will still comply. That begs the question: if it makes no difference, why change the wording? It is clear that having these words is more likely to dilute the duty than not having them.

As far as I know, no legal challenges have been brought to the existing test of,

“take all steps that are necessary”,

with, perhaps, a vexatious suggestion that an electoral registration officer should have taken an unreasonable step, such as coercing someone to fill in a form or something of that nature. It is of course understood that the steps taken should be reasonable, but we believe that all necessary steps should be taken, and to that end the words referred to in Amendment 39 should be omitted.

I would be grateful to hear from the Minister why he thinks there is merit in removing those words—or at least a reiteration of the assurance that there is no intent to change the purpose of those words, even if they disappear from the legislation. We should not like to hear that there is any intention to dilute the duties of the electoral registration officers, and these reassurances will need to be persuasive if we are not to return to this issue on Report. I look forward to hearing from the Minister and I beg to move.

[Lord Falconer of Thoroton]

My Lords, we have two amendments in this group. They chime with the point that the noble Lord, Lord Rennard, is making; namely, is the Bill intending to dilute the powers of electoral registration officers and the Electoral Commission?

Amendment 39A seeks to address concerns held by the Electoral Commission that Schedule 4 waters down the provisions of the Representation of the People Act 1983 that required electoral registration officers to take all necessary steps in carrying out their duties. Our amendment proposes to remove this subsection and is intended to give the Government an opportunity to explain their thinking on this, and it very much reflects the point made by the noble Lord, Lord Rennard.

With regard to Amendment 39C, this Bill downgrades the role of the Electoral Commission in the transition to and rollout of individual electoral registration. We have sought several opportunities to amend this Bill to give the Electoral Commission more power. This amendment aims to give power to the Electoral Commission to intervene where EROs are not performing to a sufficiently high standard.

However, interestingly, the Electoral Commission has now issued a statement saying that it feels that it does not need these further powers. We originally tabled this amendment in response to the Electoral Commission’s concerns, but it now says:

“In instances where the Commission has concerns about ERO performance, following a recommendation from the Commission, the Secretary of State or Lord President of the Council has a ‘power of direction’ to require EROs to comply with any general or special directions in relation to the discharge of their functions. To date this system has worked well and we therefore see no need for this to change when IER is introduced”.

The Electoral Commission says it is satisfied with this provided that it receives assurance from the Government that they are prepared to use the existing power of direction in cases where EROs are not fulfilling their duty to take all necessary steps to maintain the electoral register.

It is not a satisfactory position that the Electoral Commission not taking additional powers depends upon a Minister intervening in relation to what particular EROs are doing. It is a slower process; it depends upon the good will of politicians. Is it not better for it to be dealt with by a body that is independent of any political party? I would be interested to hear the Government’s views on these issues.

[Lord Gardiner of Kimble]

My Lords, first, I thank my noble friend for raising the issue of the general duty on registration officers.

The amendments to the 1983 Act set out in the Bill strengthen the existing duties on a registration officer while taking into account the requirements of the new registration system. The amendments to Sections 9 and 9A of the 1983 Act made by the Bill do not lower the standards that registration officers are expected to meet. Instead, they set out explicitly important requirements that are not expressly stated in legislation at present.

The qualification of “reasonably practicable” applies to the standard of completeness and accuracy of the register that must be reached—it must be as complete and accurate as is reasonably practicable. This is a high standard. To set it any higher would be to ask registration officers to achieve unreasonable or impracticable levels, which would not be right. It is simply not possible for registration officers to have perfectly up-to-date registers at all times and it would not be reasonable to introduce a requirement on registration officers which they would not be able to meet.

The Electoral Commission accepts that the changes proposed to Section 9A do not represent a watering down of the duties of electoral registration officers, but has asked the Government to make clear their intention behind the rewording of Section 9A. To offer that reassurance I will quote Mr David Heath from another place when he said that,

“far from diluting the requirements on registration officers, under the new registration system we are strengthening the existing duties”.—[Official Report, Commons, 27/6/12; col. 316.]

The change we are making does not weaken the duty in Section 9A. We have set out in draft regulations our initial proposals for what registration officers must do to encourage an application to register to vote. This includes as a minimum the sending of an invitation, two reminders, and the sending of a canvasser to encourage an application.

I believe that Amendment 39A has the same desired effect as Amendment 39. In addition, however, it would have the effect of removing the explicit duty to seek to include in the register those who are eligible to vote but are not currently on the register. Amendment 39C would give the Electoral Commission powers of intervention where they judge that registration officers have not taken all of the necessary steps outlined under Section 9A. However, it is not clear from the amendment what form this intervention would take.

We believe that the fulfilment of the requirements set out in Section 9A plays a vital role in improving the completeness and accuracy of our electoral registers, which we are committed to achieving; however, giving the Electoral Commission powers to intervene where this is not being done would be a significant change in its role.

The Commission already has powers to set and monitor performance standards for electoral services, against which electoral registration officers’ performance is measured. A failure to meet those standards could indicate a potential failure to meet the duty set out in Section 9A of the 1983 Act. In addition, Ministers may require registration officers to comply with directions relating to discharging their functions. It is also an offence for them to breach their official duty without good cause. To date this system has worked well and we see no need to change this or for any specific provision to be made relating to the discharge of Section 9A duties. For these reasons, I question whether the amendment is necessary in ensuring that Section 9A duties are fulfilled. For those reasons I ask my noble friend to withdraw his amendment.

I shall also speak to Amendments 43 and 45, which are minor and technical amendments. As a consequence of the changes to the canvass process under IER to be made by the Bill, we need to remove the reference to “the relevant date” from Section 49(6)(a) of the 1983 Act. That date is usually 15 October, which is currently the date of residence for the purposes of the annual canvass. Under IER the canvass will not be tied to a date. It is for those reasons that the Government will move Amendments 43 and 45.

[Lord Rennard]

My Lords, I thank the Minister for his assurances that there is no intention whatever to weaken the duties of returning officers in relation to the registration process. I hope that any information that emanates from the Electoral Commission in due course will emphasise that fact to returning officers. On the basis of his reassurances, I beg leave to withdraw Amendment 39.

Amendment 39 withdrawn.

Amendment 39A not moved.

Amendment 39B

Moved by

[Lord Falconer of Thoroton]

39B: Schedule 4, page 21, line 26, at end insert—
“( ) In subsection (2), after paragraph (e), insert—
“(f) reporting to the police any suspicion he or she might have that an offence had been committed relevant to the integrity of registration and absent vote applications””

[Lord Falconer of Thoroton]

This amendment seeks to put an additional duty on electoral registration officers. Tackling electoral fraud is one of the stated aims of the Government in shifting to a system of individual electoral registration. It has been one of the justifications for speeding up the implementation. While we warn against the fast-track transition, we wholeheartedly support all attempts at addressing and seeking to eliminate the occurrence of fraud. EROs are the officials charged with the administration of the electoral register. If they see suspicions of fraud, they should report them to the police, and in this amendment we suggest that a specific duty be placed on EROs to do that. I beg to move.

18:45

[Lord Gardiner of Kimble]

My Lords, Amendment 39B would require electoral registration officers to report to the police any instances where they suspect that individuals have committed offences relating to electoral fraud when submitting a registration or absent vote application. While the spirit behind the amendment is commendable, the Government do not consider it to be necessary to make this a statutory requirement. I should like to explain the reasons for that.

The need for EROs to refer to the police any suspicions they have on registration or postal vote applications which they receive is already very clear in the guidance issued to them by the Electoral Commission. The Electoral Commission’s Managing Electoral Registration in Great Britain guidance clearly states:

“Any issues concerning the integrity of the registration process should be reported”—

by the ERO—

“to the police immediately”.

In addition to this, the Electoral Commission has worked with the Association of Chief Police Officers to produce guidance for EROs, returning officers and police officers on identifying and responding to allegations of electoral fraud around the registration and postal voting process. In exercising its powers under Section 9A of the Political Parties, Elections and Referendums Act 2000, the Electoral Commission has also set a specific performance standard on integrity which EROs need to meet in maintaining the integrity of registration and postal vote applications. In order to meet this performance standard, EROs are required to establish and maintain contact with their local police with a single point of contact and to ensure that any suspicions arising from registration and postal voting applications are reported to them immediately.

In view of the guidance, performance standards and the reports from the Electoral Commission which confirm that the overwhelming majority of EROs already take the appropriate action to report any suspicions they have in relation to fraudulent registration and postal voting applications to the police, we do not consider that this amendment will have any major impact or lead to any improvements on the ground. Although it is commendable, it is for those reasons that I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I am grateful to the Minister for his reply. I beg leave to withdraw the amendment.

Amendment 39B withdrawn.

Amendment 39C not moved.

Amendment 40

Moved by

[Lord Gardiner of Kimble]

40: Schedule 4, page 22, line 20, at end insert—
“(b) omit paragraph (c) and the “or” before it.”

[Lord Gardiner of Kimble]

My Lords, I shall speak also to Amendments 44 and 46. These amendments are all technical and consequential. They relate to anonymous entries in the register. I should make it clear that the move to individual electoral registration will not change the right of individuals who may be at risk if their details are published in the electoral register to be registered as anonymous entries. However, the procedure relating to anonymous entries is being modified slightly as a result of individual electoral registration. These amendments are all consequential on these modifications and other IER changes. I beg to move.

Amendment 40 agreed.

Amendment 41

Moved by

[Lord Gardiner of Kimble]

41: Schedule 4, page 23, line 15, leave out “In section 13(5)(b),” and insert—
“(1) Section 13 (publication of registers) is amended as follows.
(2) In subsection (2)(b), after “13A(3)” insert “or (3A)”.
(3) In subsection (5)(b),”

[Lord Gardiner of Kimble]

My Lords, I shall speak also to Amendment 42. These are minor amendments and are intended to ensure that as many eligible applicants as possible are registered by removing a restriction on rolling registration applications being added to the revised register. Removing this restriction would not affect the entitlement of people to object to an application for registration or the registration officer’s duty to determine objections. Rolling registration was introduced by the Representation of the People Act 2000, the provisions of which set up a 14-day period prior to the publication of a monthly update or a revised register during which successful rolling registration applications may not be added.

Under the household registration system, this 14-day limit does not cause any great problems as different rules apply to the compilation of registers used for elections, and the revised register, which is usually published on 1 December, is published following the canvass period. Because a returned household canvass is a de facto application to register, few rolling registration applications are currently made in the canvass period. However, under IER, all applications to register will be akin to rolling registration applications. Having a 14-day period when these cannot be added to the revised register could cause a problem and potentially harm the completeness of the register. The amendments remove the 14-day limit in relation to the publication of the revised register.

As I said, these are minor amendments, but they are supported by the Electoral Commission, which said that it did not believe that there was any significant rationale for retaining the current 14-day period. Indeed, the Association of Electoral Administrators did not feel that there was any administrative reason to keep the limit. For those reasons, I beg to move.

[Lord Falconer of Thoroton]

My Lords, the amendment sounds reasonable. Am I right in saying that there will now be no time limit before publication in respect of which registration can take place, meaning that, if you make your application the day before the register is published, it will be included in the register? If you remove the 14-day limit, that appears to be the effect. Perhaps I have misunderstood the amendment, but that seems to be the effect.

[Lord Gardiner of Kimble]

My Lords, I think that I am getting into slightly technical territory, but my understanding is that the provision is designed so that, about five days before the register is concluded, as many people as possible are able to be on the register. Some assistance may be coming from the Box, which is always very helpful. The answer that I have is that there is still a five-day objection period, which I think gives the provision a practical effect.

[Lord Falconer of Thoroton]

That is incredibly helpful. I am more than happy to see the 14 days go. The consequence is that, up to five days before publication, you will get on to the next published register; if the application is within those five days, you will be on the register that is published after the one that is just about to be published.

[Lord Gardiner of Kimble]

I am very happy to confirm to the noble and learned Lord that that is the case.

Amendment 41 agreed.

Amendments 42 to 44

Moved by

[Lord Gardiner of Kimble]

42: Schedule 4, page 23, line 23, at end insert—
“( ) After subsection (3) insert—
“(3A) Subsection (2)(a)(ii) also does not require a registration officer in Great Britain to issue a notice under subsection (2) in a case where the month which follows that in which the relevant time falls is the month containing the date on which a revised version of the register is next due to be published in accordance with section 13(1)(a); and in such a case the alteration in question shall be made in that revised version of the register.””

43: Schedule 4, page 23, line 37, at end insert—
“(1) Section 49 (effect of registers) is amended as follows.
(2) In subsection (5)—
(a) in paragraph (b), for the words from “is not” to “was not” substitute “is not or was not at any particular time”;(b) in paragraph (c), for the words from “is, or” to “was,” substitute “is or was at any particular time”.(3) Omit subsection (6).”

44: Schedule 4, page 24, line 14, at end insert—
“In section 62 (offences as to declarations), in subsection (1A), for “section 9B(1)(b)” substitute “section 9B(1A)(a)”.”

Amendments 42 to 44 agreed.

Amendment 44A

Moved by

[Lord Gardiner of Kimble]

44A: Schedule 4, page 24, line 26, leave out “must request or provide” and insert “may or must require persons to give by virtue of regulations under paragraph 1(2), or must provide to persons,”

[Lord Gardiner of Kimble]

My Lords, this is a minor and technical amendment to the Bill. It ensures that there is no ambiguity over the continued application under individual electoral registration of the existing criminal offence relating to non-disclosure of information in response to the annual canvass or providing false information in the response.

The amendment maintains our declared policy of keeping the criminal offence alongside the new civil penalty. The criminal offence of non-disclosure or providing false information is an important part of electoral registration, giving registration officers the capacity to offer a warning on the canvass form and to insist that it is duly completed and returned.

The civil penalty is an additional tool for registration officers as they encourage individuals to register, but the criminal offence is still necessary to ensure that they receive as much information as possible in response to the annual canvass so that residents may be retained on the register or invited to make an individual application.

This is a technical amendment to paragraph 1B of Schedule 2 to the Representation of the People Act 1983, which is inserted by the Bill. It creates a link to paragraph 1 of that schedule, on the requirement to give information, which contains the link to the offence in paragraph 13. I beg to move.

[Lord Falconer of Thoroton]

I feel sorry for the Minister because this is rather a complicated amendment. It was presented as being intended to preserve the criminal offence alongside the civil penalty. My reading of the amendment, which amends an amendment to another Act of Parliament, is that, instead of referring to information that a registration officer “must request or provide”, it refers to information that they,

“may or must require persons to give by virtue of regulations under paragraph 1(2), or must provide to persons”,

when conducting a canvass in Great Britain. I do not read Amendment 44A as preserving a criminal offence; I see it as changing the terms of the change that was introduced by the amendment to the other Act in this Act. Am I right and, if so, what is the effect of Amendment 44A? I apologise for asking such a complicated question but it is a rather complicated provision.

[Lord Gardiner of Kimble]

I understand that the key phrase in the amendment is the reference back to paragraph 1, but its purpose and effect is that there will be a criminal offence relating to non-disclosure of information on the annual canvass, as there is under the current household registration system. This relates to not providing information or providing false information when requested by an ERO. The criminal penalty can be used by EROs to ensure that the annual canvass form is completed and returned. However, the offence will remain in addition to the civil penalty being introduced under IER, which allows registration officers to impose the penalty where an individual fails to apply to register when required to do so. The criminal offence is more severe because it aims to prevent the potential disenfranchisement of others through the canvass whereas the civil penalty relates to an individual’s application. That is the purpose and effect of the amendment. I can go into further technical detail but perhaps I may clarify the point to the noble and learned Lord more fully when I have taken further advice. Having looked at the technical detail, which involves so much explanation of paragraphs, sections and subsections, I think that I would be in difficulties, and I suspect that other noble Lords might be also.

[Lord Falconer of Thoroton]

I am perfectly content with that answer. Perhaps the Minister could have somebody write a little letter about it, because I do not think that it is at the heart of the Bill. It is my fault for not quite understanding the effect of the new amendment. If it were possible to write a letter in relation to it, I am sure that it would be no problem, but it would mean that, by the time we got to Report, we would know where we stood. I apologise for not grasping it.

Amendment 44A agreed.

Amendments 45 and 46

Moved by

[Lord Gardiner of Kimble]

45: Schedule 4, page 25, line 24, at end insert—
“Representation of the People Act 2000 (c. 2)In Schedule 1 to the Representation of the People Act 2000 (registration: amendments of Representation of the People Act 1983), omit paragraph 12(3) and (4).”

46: Schedule 4, page 25, line 27, leave out “paragraph” and insert “paragraphs 4(2), 5 and”

Amendments 45 and 46 agreed.

Schedule 4, as amended, agreed.

19:00

Schedule 5 : Transitional provision to do with Part 1

Amendment 47

Moved by

[Lord Falconer of Thoroton]

47: Schedule 5, page 27, line 21, at end insert—
“( ) The Government shall report to Parliament annually, within two months of the end of the financial year, on what money has been made available to local authorities to meet costs of transition to the new register and what safeguards have been put in place to make sure the money has been spent on the specified task.”

[Lord Falconer of Thoroton]

My Lords, this amendment—if it was passed— requires the Government to report to Parliament annually, within two months of the end of the financial year, on what money has been made available to local authorities to meet the costs of the transition to the new register which will be under IER, and what safeguards have been put in place to make sure that the money has been spent on the specified task. I do not think it would be properly regarded as ring-fenced money but it would mean that the Government would be identifying the amounts of money that they expected to be seen spent on the transition and then there would be a report back afterwards to indicate what had happened to that money.

This is important because I think everybody in the House, and certainly in the other place, is aware of the importance of IER being made to work. I think most people would accept that whether IER works properly or is introduced in a way that does not leave too many people off the register will depend to some extent on the resources that are made available by central government to local authorities to ensure that happens. We know local authorities are pressed in a whole variety of ways at the moment because of the current economic position. I think it is sensible to try to protect the position that at least there is a requirement to report on both the money envisaged and then what happened to it. I beg to move.

[Lord Norton of Louth]

My Lords, I have a slight problem with the amendment moved by the noble and learned Lord. I may have missed something, but he said that the amendment provides that the Government shall report to Parliament annually, so there is no limit on the number of years—presumably it is in perpetuity—but they would be reporting on something transitional. Presumably there should be some time limit set in the amendment, otherwise there is redundancy built in to what is being asked in terms of providing material that becomes irrelevant once the transition is complete? Or have I missed something?

[Lord Falconer of Thoroton]

One would hope so. I do not know how long the transition is going to take. It is clear from the way that everybody has spoken that probably in the first publication of the register where IER is compulsory—1 December 2015—it will not be complete. I have no idea how long it will go on after that, therefore at the moment I am not minded to put in a terminus date. At this stage, I cannot see any objection to the principle. This may surprise you as I am not intending to push this to a vote, but if the principle were accepted—which I hope it will be—then I think the right thing to do would be to talk to the Government to work out the best way to craft the detail.

[Lord Gardiner of Kimble]

I am most grateful to the noble and learned Lord for his amendment requiring an annual report to Parliament on the funding allocated to local authorities. I am sorry to disappoint the noble and learned Lord, but as the then Minister for Political and Constitutional Reform announced during this Bill’s Second Reading debate in the other place, we will provide local authorities in England and Wales with grants under Section 31 of the Local Government Act 2003 to pay their net costs for the transition to individual registration in addition to the current costs of running the annual canvass process which will continue to be met through the formula grant.

The Government wrote to local authorities over the summer seeking views on the proposed payment method for the allocation of non-ring-fenced Section 31 grant and the proposed formula which will be taken into account in making allocations. The Minister for Political and Constitutional Reform then wrote to local authorities in December 2012 setting out how the final funding approach, including the funding formulae, will work. The grants paid by the Government to each local authority during the transition will be a matter of public record, and the progress made by local authorities towards implementation of individual registration will be scrutinised by the Electoral Commission as part of its performance standards regime and will also be a matter of public record.

Spending decisions are ultimately a matter for local authorities. However local authorities are required by Section 54 of the Representation of the People Act 1983 to pay the expenses of a registration officer properly incurred in the performance of their functions. Paragraph 16 of Schedule 4 to the Bill ensures that this requirement extends to the registration officer’s duties in respect of the transition to the new system.

I am sorry to disappoint the noble and learned Lord, but it is for those reasons that it is felt that the amendment is not necessary, and I therefore ask him to withdraw his amendment.

[Lord Falconer of Thoroton]

The effect of my amendment would be that the report to Parliament annually, within two months of the end of the financial year, would simply be on what money was made available which the local authorities could use to meet the costs of the transition and what safeguards have been put in place to make sure the money had been spent on the specified task. It does not, in fact, require that the Government have to ensure that they do. It is a means of identifying what they intended and what steps they took to see whether it happened. With the greatest of respect to the Minister, I cannot see in any of the reasons that he gave why that is not quite a good thing to do which causes no problems for central government and does not interfere with the fact that it is ultimately for local authorities to make the decision about how they spend the overall grant they have. All that is being required here is that central government do the best it can in order to ensure that there is enough money for the transition without in any way offending the constitutional position.

Despite the Minister’s excellent help on previous amendments, I fear we may be hearing about this one again. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendment 48

Moved by

[Lord Falconer of Thoroton]

48: Schedule 5, page 27, line 31, leave out “first” and insert “second”

[Lord Falconer of Thoroton]

My Lords, Amendments 48, 49 and 51 deal with this particular issue. We know that even though there is no compliance with the notifiers in the period up to 2014, nevertheless the individual elector will be carried over to the 2014 register but not to the 2015 register. In relation to the 2014 register, although the registration would be carried over, the proxy or postal voting arrangements made in relation to that elector will not be carried over. We would like to see carryover of the proxy and postal voting arrangements. We fear that if there is carryover without that also being carried over, it may well be that, without knowing it, people lose their ability to vote. The people who will be most affected by this will tend to be the poorest and the dispossessed in society. Is there a reason why the carryover does not include the proxy or postal vote? If the registration is to be carried over to 2014, what is the thinking behind not having a carryover? Will the Government think again? I beg to move.

[Lord Rennard]

My Lords, I shall speak first to Amendment 58 in my name and that of my noble friend Lord Tyler. Unlike the intention of other amendments within this group, we do not wish to decide today that the transition to individual electoral registration need necessarily take longer than the Government hope. However we very much want to make sure that Parliament has the opportunity, if necessary, to lengthen the transitional period in order to protect the comprehensiveness of the register. That is the purpose of Amendment 58.

We understand from recent discussions we have held with the Electoral Commission that it will not be sure about the success or otherwise of this transition until some point in 2016. Therefore, we think it is highly desirable that there should be some opportunity to extend that period. We know that throughout the process the Electoral Commission will give advice to Parliament as the transitional phase continues, and Parliament will have regard to that advice, but we feel strongly that Parliament must be able to act upon that advice rather than just receive it. However we think it would unfair to say that the Electoral Commission should be the sole arbiter of whether progress towards individual electoral registration has succeeded sufficiently well that the register could be considered to be in a fit and proper state for the various purposes for which it is used.

The Committee has heard previously about our recommendations to try to ensure that the process is a success. We considered them on our first day in Committee. We on these Benches were particularly concerned about things such as the position of attainers—16 and 17 year-olds. We wanted to know how we can track down people in the private rented sector and how we might make use of the DVLA database of drivers to find huge numbers of adults. Even if we do not use the whole DVLA database, we are anxious to know how people who notify the DVLA that they have changed their address might be incorporated into the system of electoral registration.

All those different methodologies to try to improve both the accuracy and the comprehensiveness of the electoral register involve new technology and new processes, and we cannot tell at this stage how successful or otherwise they will be. The current round of pilots has yet to be properly evaluated. Although we want to make individual electoral registration a success under the timetable set out in the Bill, we think that it is important that there is a safeguard in such an important issue for our democracy, so that Parliament has the opportunity to say, “We are not sure that this process has been sufficiently successful for us immediately to change over to individual electoral registration exclusively and drop the carryover”.

We know from many debates how the electoral register is in a different state of order in different parts of the country. We would want to know that it is in a better state of order in all parts of the country before proceeding. We think that we need more flexibility.

We know that Ministers might even welcome the idea that Parliament has to approve the final completion of the transitional phase and the use of the new electoral register without carryover if it helps bring pressure to ensure that that transitional process is carried out successfully. It is not necessarily delay or dilution, but flexibility which we seek. We hope to hear from the Minister that consideration will be given to allowing Parliament to decide later in the process whether it is really safe to proceed as is envisaged for 1 December 2015 or whether carryover needs to continue for a little longer. We may be dealing with new boundary reviews starting on the register on 1 December 2015, and important elections are due in Scotland and Wales and many English local authorities in 2016. It is vital that the register is in good shape for those purposes.

Amendment 50 deals with the distinct issue of the treatment of postal voters in the transition to individual electoral registration. I have instinctive sympathy with the Government’s view, which the Electoral Commission appears to share, that the postal voting system may be more open to abuse and therefore ripe for reform than the in-person system. However, the purpose of the amendment is to test the evidence for that contention.

In 2006, the previous Government accepted an amendment in my name to the Electoral Administration Bill, now enacted, which greatly improved the security of the postal voting system by requiring anyone voting by post to sign a personal application to say that they wanted to vote by post and to sign an accompanying certificate with the postal vote so that we could be certain that the person who applied for the postal vote was the same person who was returning the completed ballot paper.

It is possible to see how voters impersonating people in person can more easily get away with impersonation. It is not difficult to go to a polling station, give a name and address and be handed a ballot paper. You might not choose the name of someone famous or someone who always votes, because they may turn up subsequently and dispute the fact that they have already been given a ballot paper and demand a subsequent ballot paper, and there may be an investigation, but we know that many people never vote. A party could be involved in an election, find out that someone has no intention of going to the polling station and vote on their behalf. Indeed, in my experience in Liverpool in the 1980s, when the noble Baroness, Lady Gould of Potternewton, was trying to organise reforms of the Labour Party in that city at the same time as I was trying to beat the then Militant-led Labour Party, there was widespread impersonation at the polling station organised by the Militants, who did not have sufficient support from ordinary voters but could impersonate large numbers of them.

It is not as simple as saying that voting by post is clearly open to fraud and abuse but that voting in person is not, but the Bill proposes that you must be registered under the IER system if you are to vote by post, but that you do not have to if you vote in person. I wonder whether that is justifiable and whether we should insist that postal voters are registered under the new system if they are to be able to exercise their right to vote in the 2015 elections.

19:15

[Lord Taylor of Holbeach]

My Lords, there is no question of inadmissibility for these amendments. Indeed, questions were raised during the debate that we had a short while ago that addressed, in particular, the transitional arrangements to the new, individual electoral register.

Two subjects are under discussion and, if noble Lords will permit, I will deal with them in turn. The first is the removal of absent votes from those electors who do not register under IER in 2014. My noble friend Lord Rennard’s Amendment 50 and Amendment 51, tabled by the noble and learned Lord, Lord Falconer, speak to that issue. The amendments would leave in place absent votes for the 2015 general election for voters who have not registered or been verified under IER. To respond to my noble friend’s challenge, I think that he is saying that that is incompatible with the arrangements that we have elsewhere. One of the drivers of IER is tackling electoral fraud, and especially vulnerabilities to registration fraud, to restore voters’ confidence in the system. Moving to a position where all those casting postal votes or using proxies have been verified through IER will add an additional safeguard to the system at the earliest possible opportunity.

The Electoral Commission agrees with this position and stated in response to Amendment 50:

“We oppose this amendment because we believe that the security of the absent voting process should be improved in advance of the 2015 UK general election”.

The use of data matching to confirm entries will mean that a significant number of current postal voters are likely to be able automatically to retain their postal vote in the 2015 general election. Others who are not automatically confirmed on the new register will be given an opportunity and reminders to register under the new system in 2014 and, if they choose not to, will still be able to cast a vote—not a postal or proxy vote, but one in person—at the 2015 general election. We are not disfranchising anyone, but the driver is, of course, to get people to register under IER.

There will be clear communication to anyone with an absent vote who is invited to register under the new system about what will happen if they do not do so, and in the event that the person does not register, they will be written to again to inform them that they have lost their absent vote and giving them the opportunity to register under IER and reapply for their absent vote. This is a participatory exercise; it is not designed to remove legitimate voters from the register.

Those steps, alongside the addition of the other measures we have introduced to maintain completeness, such as the introduction of the civil penalty, minimise the risk of someone with an absent vote inadvertently losing it, which was one of the noble and learned Lord’s concerns, while as promptly as possible bringing in an important safeguard against fraud.

I now turn to Amendments 48, 49 and 58, each of which relate to the carry-forward of existing electors under IER. I briefly remind the Committee that, under our proposals, there is already a carry-forward function to include those from whom a canvass form has been received in the final pre-transition canvass, which we intend to conclude in spring 2014. Those who do not make a successful application to register and are not confirmed by data matching, which of course the vast majority will be, will remain on the register throughout the transition to TIER, including the register used for the 2015 general election.

Amendment 48, tabled by the noble and learned Lord, would have the effect of including in this carry-forward those electors who last registered in the canvass of 2012. This would retain until 2015 the entries of electors added to the register last year who did not respond positively to the final non-IER canvass. If entries from 2012 were kept on the register until 2015 without any subsequent evidence that the person was still resident there, the register for the next general election would contain entries where the ERO had not heard from the elector for more than two years. We believe that this is too long for the ERO to remain satisfied that the citizen is indeed still resident and that the effect of this amendment would be to increase the inaccuracies on the register, something I think all Members of the Committee would agree should be avoided. Indeed, much of the debate we had earlier was about inaccuracies on the register.

Amendment 49, also tabled by the noble and learned Lord, would extend the carry-forward for one year, so that non-IER entries on the register are not removed until 2016. Amendment 58, tabled by my noble friend Lord Rennard, would mean that the final transition to an electoral register made up solely of individually registered electors could take place only following Parliament approving a statutory instrument. We are not minded to adopt these proposals because of the likelihood of the inaccuracies they will bring to these early IER registers. We know that carrying forward non-IER entries on the register will result in some inaccurate entries being carried forward. We judge that this is an acceptable risk to take to protect the registers for the general election in 2015.

However, when the registers are published, after the 2015 canvass, in December 2015 it could have been nearly two years since the ERO had heard from the individuals in question here, which brings in the risk of a high degree of inaccuracy. Under the noble and learned Lord’s amendment these entries would remain on the register and under my noble friend’s amendment they would remain on the register if Parliament did not vote to engage the removals process in 2015. Furthermore, under our plans, by the time of publication of the registers in 2015, those individuals who are not confirmed automatically at the start of the transition will have had more than a year to register individually, over two canvasses, and will have been contacted a number of times by their ERO. There will also be a general election between the two canvasses—a time when awareness of politics and voting is at its highest. Our intention—and I hope this reassures noble Lords who are the authors of these amendments—remains that EROs will write to individuals who have neither registered nor been confirmed towards the end of the 2015 canvass to inform them that they will be removed and to offer them one further chance to apply to be registered.

I hope that is reassuring. The intention behind these amendments is to maintain the number of entries on the register, but in our view they risk reducing the accuracy of the register to an unacceptable degree. In the case of the amendment tabled by my noble friend Lord Rennard there is also the difficulty of creating uncertainty for the public and administrators which could undermine the effectiveness of our plans for the transition. The Government are confident that our proposals for the transition to IER are about right. We will avoid the problems that this group of amendments is intended to address and, for the reasons I have set out, I urge the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

I am grateful to the Minister for that comprehensive reply. Two things go through my mind. First, in relation to the 2014-15 change, he acknowledges that despite all the efforts being made to get people to register by IER it may not work. If that is right, why will it work in relation to postal or proxy votes but not in relation to individual registration? Secondly and separately, the noble Lord, Lord Lipsey, referred to the effect of the information that is coming out, and we know what the data-matching pilots are saying. Do they not make the Government think that a longer carryover period is be required? In particular, the data-matching pilots are showing that only about 70% of names are matching up, which may not be enough. I hope the Government will think about those matters. We will certainly think again and consider whether to come back on Report. I am grateful to the Minister for his answer. In the circumstances, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

Amendments 49 to 51 not moved.

Schedule 5 agreed.

House resumed. Committee to begin again not before 8.26 pm.

Education: English Baccalaureate Certificate

Monday 14th January 2013 Lords Chamber

Question for Short Debate

19:26

Asked By

[The Earl of Clancarty]

To ask Her Majesty’s Government whether they will reconsider their decision to omit certain arts subjects from the proposed English Baccalaureate Certificate.

[The Earl of Clancarty]

My Lords, I very much welcome the opportunity to have this important and timely debate and I thank the Library for its briefing note. I must attach a disclaimer to the terms of this debate, which is: “Will the Government reconsider the omission of arts subjects from the EBacc, if the reforms go ahead?”. A growing number, and I count myself among them, believe that the EBacc is severely flawed and, at the very least, should be postponed pending fuller consultation over all its aspects. However, I will come back to the wider debate later.

This Government continue to underestimate the significance of the arts and creative industries, culturally, socially and economically. It is perhaps no surprise that the ongoing reduction of investment in the arts signals a downgrade now being extended to the arts in school education. School education is so important, not only as a preparation for, but as the template of, the wider world of work including arts, design, manufacturing and so on. Due to this progression from school through to work, the implications of these reforms for the individual, wider society and industry are enormous.

High-profile arts leaders and practitioners have said they believe that in the long term the effect of these reforms could be more significant even than the cuts to public subsidies. Indeed, as the Minister will be aware, there has been a huge barrage of concern and criticism over the omission of arts subjects from the EBacc from both the subsidised and commercial wings of the arts—from film, theatre, the visual arts, including public museums and art dealers, music, dance, craft and design, and tellingly too from others outside the arts.

I am spoilt for choice from the many quotable things people have said in recent weeks, but I will pick out a few. The artist Grayson Perry said:

“If you think about the opening ceremony of the Olympics and all the things that we think of to symbolise modern Britain—from the Beatles to the internet—so many of them are based in creativity … The government is not looking at the country as it actually is: a place that is brilliant at fashion, broadcasting, design, the arts, drama, film”.

Julian Bird, chief executive of the Society of London Theatre and the Theatrical Management Association in an open letter to the Secretary of State said:

“Managers of the UK’s … theatres are concerned that not including the arts in the proposed EBacc will have a negative impact on broader skills development”,

and,

“social mobility … the current proposals threaten the supply of talent needed to maintain one of the few industries where the UK is currently internationally regarded as a world leader”.

Last month, British designers including Jonathan Ive, Stella McCartney and Terence Conran, as well as design companies and universities, wrote to the Secretary of State saying:

“The innovation that fuels UK growth relies on knowledge, the skilled use of materials and the command of ideas. Design and the arts are vital components of an accessible and varied”—

note the word “varied”—

“education system that can provide these skills. The prospect of future generations growing up considering these subjects as unimportant is simply incomprehensible”.

The Secretary of State needs to listen carefully to this criticism, because at present the Government are displaying a blasé attitude that does not reflect reality. They say that pupils are still free to take arts subjects at GCSE level and schools are free to offer them, but the 20% or so left in the school timetable to teach non-EBacc subjects is like being thrown crumbs. Moreover, school governors have told me that once a subject no longer contributes to the league tables, it slips down the priorities for resources.

Further evidence that neglect is already happening comes from research commissioned from Ipsos MORI by the Department for Education, available on its website. The arts are already hardest hit, with 23% of teachers whose schools have withdrawn a subject—about one-quarter of the total polled—saying they can no longer offer drama or performing arts, 17% saying that art has been withdrawn and 14% that design or design technology has been withdrawn, trends confirmed by figures from the Joint Council for Qualifications in a Commons Written Answer to Dan Jarvis on 15 October. If this is already the result of the introduction of the EBacc as a performance measure, then it is not difficult to imagine the deepening of this effect once the formal qualification is in place. Most damning of all, perhaps, is the DfE research stating:

“Sixty-three per cent of teachers surveyed whose schools do not offer the EBacc combination to all pupils say this is because they do not offer it to lower-attaining pupils”,

a crystal-clear expression of the lower-class status that excluded subjects now have. The Government may want to move away from league tables but the effect will remain the same. There will be other serious effects if these reforms go through as they are. Many have pointed out that it will be children from poorer homes who will be disproportionately deprived of exposure to the arts.

The Secretary of State seems to believe that the EBacc is what universities and business leaders want, yet the representative body Universities UK gave this written evidence to the Education Committee’s inquiry into the EBacc in 2010:

“Given that the EBacc emphasises traditionally academic subjects, it has been argued that this could serve to further widen the gap between academic and vocational subjects. There is also concern that the EBacc could encourage a shift away from arts-related subjects … In general … there appears to be a limited appetite to include the award as part of a university’s entry requirements or selection criteria”.

I stress the phrase “a limited appetite”. I therefore wonder how much the Russell Group’s guidance that was set out in 2011, rather than indicating what universities would like, has been a kind of self-fulfilling prophecy, because some universities will quite logically consider less those subjects that are already starting to be marginalised.

The issue of overspecialisation at too early an age is an important one. In its report First Steps: A New Approach to our Schools, the CBI, which is critical of the EBacc in many ways, talks about the need for what it terms a “rounded and grounded” pupil, echoing what those in the arts also say. Rosy Greenlees, executive director of the Crafts Council, tells me that while not wholly against a “techbacc”—and I would welcome some more detail from the Minister on the Government’s plans in this direction—she is worried about the possible reinforcing of what she calls the,

“traditional divide between the practical and the academic which is outmoded”.

On Radio 4’s “Start the Week” last November, which was devoted to art and design, Sarah Teasley, tutor in the history of design at the Royal College of Art, spoke about the need to push regional innovation through connections between research institutes and regions, between art and design colleges and local SMEs. There is a real need to bring arts, sciences and technology into a much more intimate relationship, and this must start in schools. Subjects need to be able to talk to each other within the curriculum much more than they do at present, but to do so they need also to retain equality and integrity. It is not enough to simply say, as the Government have done, that EBacc subjects can be taught “creatively”.

In terms of the larger structure of the EBacc, art and sport—which also feel that they are going to be neglected—need at this stage to see each other as allies in the interests of wider reform, not competitors for a position in what is being increasingly understood as a limiting and unacceptable hierarchy of subjects. What, too, about computer science, itself so crucial to the development of today’s creative industries, business, economics, sociology, and religious studies? The list goes on. There is concern, too, about the effective downgrading of the modular system—a system that many argue favours innovation and creativity—an action, as the National Children’s Bureau and other charities point out, that will also hugely discriminate against disadvantaged children and those with learning and other disabilities. For many of the reasons that I have discussed, Tony Kelly of the Education School at Southampton University says that the EBacc will be a distraction from the fundamental mission of schools to create well-being for students—not solely economic well-being but the development of the ability to turn opportunity into betterment.

The support for withdrawing the EBacc is now backed by teachers, parents, unions, national museums, major charities, the National Governors Association, academics and universities, Peers, MPs and former Education Secretaries, including the noble Lord, Lord Baker of Dorking. Seeing as the consultation for key stage 4 has been held very much in public, I am tempted to say that the Government hardly need to look at the results to see how institutions and many people now feel. The Government must give very careful consideration to the consultation and report back quickly. Although we have had the music plan, we are still awaiting the response of the Government to last year’s Henley report on cultural learning, which backed the inclusion of arts within the EBacc.

One of the frustrating things that so many working in the arts now feel is that we are living through a time when the arts and creative industries have become central to our society, central to our culture and, as I said at the beginning of this debate, hugely significant economically. They could of course be more so, but the arts are in real danger of taking a backward turn at a time when the Government should be seizing the day and capitalising on what is now in place but which might well be lost if the Government do not change tack.

[Lord Newby]

My Lords, for the benefit of the House, I remind noble Lords that this is a time-limited debate and all speeches are limited to three minutes.

19:37

[Baroness Perry of Southwark]

My Lords, I congratulate and thank the noble Earl for having inaugurated this debate with such a stimulating speech. I yield to no one in my love of the cultural subjects that he has described. I fear that we have here a degree of confusion between the EBacc and the English baccalaureate certificate. Partly due to confusion in the way in which the Government have put this issue out to consultation, it is very difficult to see the difference between the two. As I understand it, though, the English baccalaureate certificate will eventually spread across all subjects, while the EBacc will be a reward for students who perform at a particularly high level in the range of five subjects that the noble Earl has already described. The Government’s consultation says,

“to ensure the benefits of this more rigorous approach to the English Baccalaureate subjects are felt across the whole curriculum, we will ask Ofqual to consider how these new higher standards can be used … for judging and accrediting”,

subjects at age 16 beyond the EBacc to replace current GCSEs. I hope that I am right, and that the Minister will be able to reassure me, that the baccalaureate certificate will eventually spread, although I agree that it is a very slow programme, across all subjects.

I return to the purpose of the change in the examinations away from GCSEs towards the baccalaureate certificate, and I welcome the urge towards a new and more rigorous kind of examination. Examinations cast a very long shadow over the whole of secondary school education, and the way in which pupils are going to be examined at age 16 determines very much the pattern of education that they will receive in the years before that. Finding a new set of examinations that genuinely go for rigour and try to assess, as Anthony Seldon has put it, the ability of the pupils rather than that of the teachers is wholly to be welcomed. It is important that students have the opportunity to develop real scholarship and independent thought but too much about the GCSEs that we have had has not encouraged that. They have encouraged a simple regurgitating of factual material that pupils have been given. The development of scholarship, God-given curiosity and a real sense of independent thought—which these new examinations are designed to achieve—will be very important.

I commend the Government for having commissioned Darren Henley to write a report on what they have described as “cultural subjects”, because we know how very important those are. I make a final plea—that we should talk not only about the arts and cultural subjects but also about those young people with a passion for the technical and vocational curriculum as well.

19:40

[Baroness Morris of Yardley]

I, too, am very grateful to the noble Earl for giving us this short amount of time to discuss this important issue. Two assumptions underpin this debate for me. First, whatever our difference of opinion may be this evening, there is a shared assumption that the knowledge, skills and experience that make up the arts are an important part of our society and how we live our lives. They are vital for economic prosperity, integral to our sense of identity and a part of what makes us a civilised society. Because of that, how we educate our children in the arts is absolutely crucial.

My second assumption is that the English baccalaureate—despite the fact that the certificates might be extended—will become the most important qualification up to the age of 16. It will replace five A* to C grades as the mark of achievement and accountability measure; it will determine whether a school is seen as successful; and, in the words of the Secretary of State, it will be the new gold standard. Because it has been described by the Government as the new gold standard, inevitably the subjects that are its component parts will be seen as the mark of what society values. I can see it now: those young people who are awarded the English baccalaureate will be seen as having been successful; they will be seen as having received a good education. My problem, therefore, is: how can a qualification with this significance have no place for the arts? How can an assessment that marks the end of the national curriculum not recognise achievement in music, dance, drama, art, design and craft? That is the problem that has been created by the English baccalaureate and it needs to be addressed.

I accept that, in theory, there is room in the curriculum for subjects to be taught other than those in the English baccalaureate, and that examinations are now available. Those, however, will be seen as marginal—they will not be the gold standard. However the Government might try to argue that they are not putting the arts subjects at a disadvantage, the lessons of almost a quarter of a century of a national curriculum and assessment system tell otherwise. We have learnt over that time that what is measured is what is valued, and what schools are held accountable for is where they will put their efforts. That is not me predicting the future; that is a description of what is happening at the moment. Schools are already rewriting timetables and reallocating resources; they are changing their staffing plans and amending the subject choice advice that they give to young people. This will happen more as they chase success in the English baccalaureate. The cost that will be paid is that arts education will take second place. Sadly, decades of progress will be reversed. That ought not to be allowed to happen, but that will be a consequence of the avenue down which the Government are leading us.

19:43

[Lord Storey]

My Lords, I apologise to the noble Earl, Lord Clancarty, for arriving a couple of minutes late. I have three minutes to speak, so I would like to make three points.

First, as a nation, our success in the arts and creative industries is second to none. It brings billions to our economy. In Questions earlier today, for example, I mentioned that the UK’s music industry alone brings nearly £4 billion to the economy. Our creative industries are the envy of the world and, as a country, we should be doing all that we can to protect that jewel in our crown. Sadly, since the EBacc started in 2010 we have seen schools culling arts subjects—dance, drama, music and design and technology courses—from their curricula. We have seen students deciding not to take up these subjects as schools limit the number of arts subjects on offer. Never mind the numerous arts organisations expressing their fears—employers are also worried. The Confederation of British Industry has recommended that creative and technical subjects should be included in the new qualification.

Secondly, every child should have the same access to the arts and culture. Schools with a high proportion of free school meals are more likely to be withdrawing from arts subjects. We know that children from families with lower socioeconomic status have less access to the arts in any case. Indeed, we are now seeing this state of affairs accelerating in our schools.

Finally, we need an examination system in which we all have confidence, whether it be the student, the teacher, the university or the employer. We need a system which is fair and not divisive—one that maintains rigorous standards and challenges the most able.

I am in favour of the EBacc. There should be a core of subjects that young people are expected to take. However, I strongly believe that a sixth pillar of the arts should be part of the EBacc qualification; in fact, the Government’s own cultural education review, chaired by Darren Henley, recommended such a course of action.

As the head of a school until December of last year—a school with an Artsmark Gold—I know the importance of visual and performing arts: how arts can develop confidence in pupils, help with other skills such as literacy and develop full, rounded pupils. Let us recognise the importance of arts in our schools for economic well-being, social mobility and the continued development of the arts.

19:46

[Lord Aberdare]

My Lords,

“Music is both an art and a science; to comprehend it fully requires long, hard study; to feel the emotions it can produce, you need a cultivated mind and a practised sense of hearing; and to judge the merit of musical works, you must also possess a well-stocked memory so as to be able to make comparisons—indeed you must know all sorts of things which inevitably you can get to know only by learning them”.

That is a quote from Hector Berlioz, my personal musical idol. It seems pertinent to this debate, on which I congratulate my noble friend Lord Clancarty.

I only really began to appreciate classical music at university. I do not, however, believe that would have happened if I had not been lucky enough to go to a school where I was made to sing, to learn the rudiments of music theory and history, and to attend concerts—as well as briefly taking piano lessons. Without that foundation, I might never have discovered Berlioz, nor would music—and the arts in general—have played such a key part in my quality and enjoyment of life.

That is just what I have gained as an amateur arts-lover. What about all those professionals working in the field of music, in a vast variety of roles and in every different form of music, who have been so successful on the world stage and who, as we have heard, help the UK to earn almost £4 billion a year in gross value added—a figure that rises to over £36 billion if all the creative industries are included? Surely they and their successors need the same sort of grounding at school if this invaluable source of UK competitive advantage is not to dry up.

The Olympics and Paralympics opening and closing ceremonies last year made plain how great a role music plays in our national perception of ourselves and of what we have to offer the world. Nothing could demonstrate more clearly that the arts and creative subjects are every bit as important as the five pillars of the EBacc. In my view, the EBacc has much to be said for it—and I particularly welcome the inclusion of Latin, Greek and ancient history among the languages and humanities options. However, the omission of a sixth pillar for arts and cultural studies could seriously compromise its benefits. It would be disastrous if access to understanding and knowledge of the arts and creative subjects became increasingly confined to those young people lucky enough to go to schools which decide voluntarily to retain them—especially if these are predominantly independent schools. The number of schools already withdrawing arts subjects from the curriculum, and the falling numbers of students taking music at GCSE—mentioned by my noble friend—are deeply worrying.

According to the IBM Institute of Business Value, chief executives identify creativity as the most important leadership competency for the successful enterprise of the future. Many of the nations with which we need to compete are putting substantial resources into educating their young people in the creative disciplines. I hope the Minister will be able to tell us how she plans to ensure that creative subjects, including music, do not become some sort of second-tier option with limited availability following the introduction of the EBacc, with resulting damage to the UK's creative economy.

19:49

[The Lord Bishop of Exeter]

My Lords, I, too, thank the noble Earl for this short debate and I share with him many concerns about the importance of the arts in education, particularly the importance of guaranteeing effective engagement with the arts for the totality of a child’s school career, including through public examinations. The exclusion of an art strand from the core EBacc suggests an overnarrow focus and a certain kind of Philistinism that values only those subjects seen, perhaps mistakenly, as contributing overtly to our economic life.

Alongside that general concern about downplaying the arts, it will come as no surprise that I have a particular worry about the other exclusion; namely, religious education. I hope that I do not need to rehearse the reasons why inclusion in the EBacc is essential for the continual well-being of the subject, nor, more fundamentally, why RE must be retained as a core element of the education of every pupil in our schools.

Understanding the impact of, in this country, Christianity and, in the rest of the world, all major faiths on life and culture, on history and politics, and on the moral and legal codes is fundamental to living as an engaged, articulate citizen, such as a healthy society requires. But religion is also inextricably connected to the arts. For western culture, that means predominantly Christianity. How can one understand and appreciate the music of JS Bach without a knowledge of the Christian faith and the context out of which his music sprang? Think of the Passions, the cantatas, the Mass. Similarly with the great masters. A huge amount of western art just is shaped by the Christian story, the Biblical record, and the life and history of the Christian church. Much great drama is dealing with the existential themes of redemption and salvation, the cost of human living, the nature and existence of God, and the challenges of the moral life.

Students who are ignorant about Christianity are locked out of a crucial part of understanding and experiencing art and culture. The relationship between the other world faiths and the arts is different but the understanding of faith as a driver for and outcome of artistic expression of all kinds is fundamental to arts education and cultural development across the board. As the case is made for the inclusion of the arts in the English baccalaureate, I ask that the case for religious education is heard as well.

19:52

[Baroness McIntosh of Hudnall]

My Lords, the noble Earl, Lord Clancarty, is a tireless advocate for the arts and culture in this House. We owe him a big debt of gratitude, not least for the opportunity to discuss the topic of this debate. I remind the House of my interests, which include membership of the board of the Royal Shakespeare Company.

Over my 40-year involvement with the performing arts in this country, I have watched the relationship between them and the education system develop from one of what I think one could describe as a mutually respectful distance to the rich, full-blown network of innovative partnerships that we have all over the country today. I do not think that there is a theatre company, orchestra or dance troupe in the land that does not regard education as a central part of its remit and there are few schools which do not benefit from that work.

In addition, there are many organisations, such as two with which I am proud to be associated—the Roundhouse and Artis Education—which have created, in very different ways, brilliant programmes to enhance and enrich the school curriculum. So much has been achieved. Therefore, how is it that we now have to defend those achievements against the reductive effect of a narrowly focused range of EBacc subjects?

The Secretary of State for Education has repeatedly asserted that culture and the arts are important for all young people and I am sure that he is sincere. He is, after all, as Mark Antony remarked of Brutus, “an honourable man”. Indeed, he recently made it possible for his department to fund the introduction into all maintained secondary schools of the RSC’s Shakespeare toolkit, which is a brilliant performance-based—noble Lords should note well, performance-based—programme for teachers. But at the same time, as we have heard, a recent Ipsos MORI report for the Department for Education shows that in 2012 27% of schools were already making reductions in the range of subjects offered at GCSE. Of that figure, 23% were in the performing arts. Does the Minister think that there might be a bit of a paradox here?

The Minister, for whom we all have a high regard, will no doubt do her best to persuade the House that schools are not being actively prevented from offering arts subjects. Of course, technically, she will be right. But when, in five years’ time, arts subjects in our schools have gone into the sort of decline that we saw with modern languages once they were no longer a compulsory element of the curriculum, that will be no defence. I have a sinking feeling that the battle to include arts subjects in the EBacc is lost for no reason other than a profound unwillingness on the part of the Government to admit an error. But what can the Minister now tell us about other means by which they might propose to ensure that young people in all our schools, not just those in the independent sector—which, by the way, seem to understand the argument about the importance of the arts rather better than the Government—are able to access the richness of their cultural inheritance? For certain it is that, without strong government intervention, the rot which has already set in will spread at a gallop.

19:55

[Lord Clement-Jones]

My Lords, I, too, welcome the debate initiated by the noble Earl, Lord Clancarty, and I congratulate him on his fine opening speech. At a recent meeting of the All-Party Group for Music Education, the chief executive of the Incorporated Society of Musicians reported that 80 organisations, including the BRIT School, Shakespeare’s Globe, the National Portrait Gallery and many others, supported what is now called the “Bacc for the Future” campaign.

I have never seen the creative sector so united against what appears to be a two-tier approach by the Government to educational qualifications. When the result of the consultation comes through, it will undoubtedly show a massive negative sentiment. Arts and cultural subjects have not been in a good place for some years. The Cultural Learning Alliance reports a steady decline in the number of young people studying arts and cultural subjects.

Now, as a result of the EBacc, the performance measure that is not to be confused with the future EBC, schools are cutting art, dance, drama, music and design and technology even further, as many noble Lords, including the noble Earl and the noble Baroness, Lady McIntosh, have demonstrated and as the Ipsos survey made so clear.

This is all completely at odds with the Henley review of cultural education, let alone his earlier review of music education, and the Government’s response, which, on the face of it, was so positive. A national plan is due to be published soon. How does the Minister reconcile this in the face of the marginalisation of arts subjects? As Jude Law, the actor, said:

“The arts must not be allowed to become a middle-class pursuit”.

As the noble Earl and my noble friend Lord Storey mentioned, there is already a disproportionate withdrawal of these subjects in schools with a high proportion of free school meals.

The fact is that we need to reverse this trend. My noble friend Lord Storey mentioned that the CBI and others have expressed concerns. There will be fewer songwriters, composers, musicians, creators, creative professionals and even appreciative audiences, which will damage the creative industries as a whole just when we are relying on them to make an even greater contribution to our future prosperity. They are uniquely important in this country. Have we not conclusively demonstrated that with our Olympic and Paralympic opening and closing ceremonies?

I hope that the Government appreciate that there is huge demand in this House and outside for the arts to be included as a sixth pillar in the EBC; for drama, dance, film and media to be included in the national curriculum. I further hope that the Government, particularly the Secretary of State, listen to the points made by the “Bacc for the Future” campaign and by this House.

19:58

[Baroness Kidron]

My Lords, for 30 years I have led my professional life in the film industry. I declare my interests as a governor of the British Film Institute, a council member at the Institute of Contemporary Arts and co-founder of FILMCLUB. The film industry is an industry where art, science and commerce are routinely combined to make a vital cultural and economic contribution to the nation. The advent of the digital age has accelerated this convergence of the arts, science and business in almost every area of life. It will not have escaped notice that this sector, unlike many others, has seen exponential growth.

In particular, the gaming and special effects industry alone was valued at nearly £3 billion in 2012. We are a world leader in digital effects and the place of first choice for many Hollywood studios. However, Alex Hope, the CEO of the largest special effects company in Europe and co-author of the 2011 NESTA review of the sector, reports that we are already failing a generation. Of the 760 designers employed by this UK company, 50% have had to be recruited from overseas because British applicants do not have the requisite skills in both maths and art, the combination of which is essential to the work of this burgeoning industry and the combination of which is routinely discouraged in our school system.

That the EBacc would exacerbate this problem by creating “Cinderella” subjects and preventing a joined-up education even earlier in the development of our workforce seems bewildering. To exclude computer science, art, design and business skills from the EBacc would indicate that the Government are wedded to a Victorian vision of education which will leave us stranded in these increasingly important global markets. As someone who has devoted their life to promoting the transformative power of culture, it feels somewhat invidious to make this economic argument, but it is testimony to how wrongheaded it is to arbitrarily create a tier of second-class subjects. The digital age has blown the wall between the two cultures wide open and it is at our peril that we systemise ignorance of any discipline when all disciplines are vital for our collective future.

I hope the House will find it appropriate if I take this opportunity to celebrate the multiple successes of the UK film and television industry at the Golden Globe awards yesterday evening, and hope that we will see many more in the future.

20:01

[Lord Smith of Finsbury]

My Lords, I should remind the House of my interests, which include being chairman or trustee of a range of arts organisations, patron of the BRIT School and a visiting professor at the University of the Arts London.

The narrow focus which the Government have placed on the English baccalaureate is, to my mind, severely detrimental. It is already squeezing out the arts from much of the school curriculum and I fear that the damage will go a lot further over the years to come. In the short time available, I want to make three brief but fundamental points.

The first is that engagement in the arts for school pupils is fundamentally important to the well-being and full education of those pupils. To ensure that a pupil can emerge from school to live the richest possible life of the intellect and the spirit for the rest of their lives, engagement in the arts is absolutely crucial to enable them to develop the fullest, roundest possible degree of character and ability.

My second point is that engagement in the arts is of fundamental importance for the well-being of the school. There is case after case in schools around the country where engagement by the pupils in a large amount of excellent artistic activity helps the performance of the rest of the school. Engagement in the arts enables pupils and encourages them to perform well academically in other subjects. The same goes for the life of the school. If the emphasis on music, dance, drama and art is lost, then the rest of the school will suffer.

The third point is that engagement in the arts for pupils is fundamentally important for the future of the country’s economy. The importance of the creative industries, which is now something like 7% of our GDP, has been mentioned by virtually every speaker in this debate. Unless we nurture the spirit of creativity through school and then into the excellent tertiary education which is available for the creative sector in the UK, we are not going to keep our world lead in that sector. I think that the Government have both the tone and the detail of the English baccalaureate wrong. I plead with them to think again.

20:04

[Lord Lipsey]

My Lords, I, too, congratulate the noble Earl, Lord Clancarty, on obtaining this debate. With the support of the House I will also congratulate Darren Henley, whose excellent reports on cultural education were recognised in the New Year’s Honours List with a very well deserved OBE.

I chair the Trinity Laban Conservatoire of Music and Dance. We train outstanding musicians and dancers and are fifth out of all higher education institutions in the country for employment of our graduates, 97% of whom are in work or further study six months after graduating. We can achieve that quality of output only because of the quality of our input. We have all heard of child prodigies in music, but you do not very often hear of adult prodigies—that is, performers who started late in life. Music and dance in schools are what enable us to do what we do.

The EBacc as it is presently conformed is very bad news for Trinity Laban: no music, no dance, no arts; instead, the Daily Telegraph suite of subjects. Ministers claim—and I am sure the noble Baroness, Lady Garden of Frognal, will do the same—that they still value the arts and I expect some of them do, but we live in a harsh world. If they do not figure in the EBacc, then schools, which will be judged by their EBacc success, will downgrade them and, indeed, they are already doing so. This is despite a YouGov poll which shows that 88% of the public expressing an opinion think that music and other creative subjects are important or very important to a child’s education. With some children whose level of performance needs to be increased, it is very often through the arts, music or dance that they make the breakthrough to seeing the value of education and then apply that to other, less congenial, subjects.

If the Government do not change tack, the composition of those who come to Trinity Laban will change as well as the quality. Those whose parents can afford to will provide school-age education in music and dance privately. Those who cannot will see their children’s talents wasted. The answer is a sixth pillar to the EBacc for such studies. If Michael Gove wants to retoxify the Tory party as the philistine party, he will continue to resist it.

20:07

[Lord Sutherland of Houndwood]

My Lords, I also thank the noble Earl for giving us the opportunity to debate this subject. I hope it is a harbinger of a much wider set of debates; this is not enough. That being said, in three minutes I cannot give my outline of what constitutes a rounded education. Instead, I will start at the end of my argument and give the answer, which is—and this will shock noble Lords—Ofsted, in which I declare an interest, having had some part in setting it up. If that is the answer, what is the question?

I agree with virtually all the sentiments expressed in this debate, so much so that I often wish there was a good philistine in the House to put an alternative point of view, not to disturb the company. However, we are arguing about what motivates schools. I do not know any teacher who would not agree that arts and music are important. I know a few philistine head teachers who practise bad faith by responding only to public stimuli in their account of what a rounded education is. They do that because they respond to what the public want, which is league tables, and they only give credit to what league tables will produce. Behind that, the notion of a national curriculum was a very good one in principle and attached to it were national exams. Performance in the exams became the other benchmark of what a rounded education is. The trouble with this discussion is that we are saying, “We will accept all that in principle reluctantly”, and we will push our pet subject into the same group with the same type of treatment that we have for the national curriculum.

I agree with noble Lords. I live by the arts, enjoy them, learn a great deal from them and get great pleasure from listening to music and going to the theatre. That is not at issue. What is at issue is what are listed as EBacc subjects. As has been rightly said, this pushes head teachers into bad faith and giving up a true understanding of what education is. That is the wrong way to go. There is space in the curriculum, and Ministers will use the language of “opportunity”. Unless they are absolute charlatans, that has to be true, and we have to help to make it true.

My proposal is that we should put a specific responsibility and requirement on Ofsted to report annually on what is happening nationally, on how many jobs have been lost in these areas, because it is serious, and, specifically for head teachers, on what an individual school does to create a rounded education. This might well be much more imaginative than trying to stick another subject into the national curriculum on which to be examined nationally. It puts a lot on Ofsted but—blow me—that is what it is paid for. It ought to make judgments and, to give it its due, it has, as a start, produced a good national report on religious education. Ofsted will have to do the same for art, music, design, computer science, and so on down the list.

My worry is that the national curriculum and what counts as a good subject will expand to the mess that we have now. Every lobby and his partner will turn up and tell us what we must include, and the national curriculum will burst at the seams. I would rather have space in schools with a specific injunction and a specific judgment on whether they are providing a rounded education.

20:11

[Baroness Whitaker]

My Lords, I am grateful for the opportunity to make one point in the gap and to apologise that an amendment in the Moses Room made me miss the first sentence of the noble Earl’s excellent speech.

I take arts subjects to include design, which of course straddles art, technology and often engineering. That conjunction explains why design is so important. It is a subject that teaches how to turn an idea into a functional object which serves a purpose. In short, it is a prime example of creativity itself—a kind of creativity which typically includes collaboration between different disciplines, interaction with the end-user and the individual satisfaction of making something that can work. All of them are skills we need.

I need not rehearse the economic and export importance of our world-famous designs, nor, I hope, the contribution they make to the quality of life in countless ways, from hospital care to smartphones. But I must stress again the educational value for all of learning design. We should celebrate our traditional strength here and include design in the EBacc before it loses its place in our culture.

20:12

[Lord Watson of Richmond]

My Lords, I am grateful for the opportunity to speak briefly in the gap. I declare two interests as vice-president of the English Speaking Union and as High Steward of Cambridge University.

I urge the Government to avoid the mistake made in 2004 when language was removed as a compulsory subject. We know the consequence of that, although I remember sitting in debates in this House when we were assured by the Front Bench that no such consequences would occur. The consequences were that the number of young people reading, for example, French fell immediately in the first year by 14%. The number reading German fell by nearly the same percentage. That damage has stayed on and the figures remain dismal when compared with what they originally were.

What is the lesson of that experience? The lesson is that the moment you remove a subject as a core subject, consequences begin to flow. It does not matter what the rhetoric is or even what the aspiration is. The truth is that people have to calculate against a set of criteria, which then makes the cutting of these subjects inevitable.

When it happened with languages, many people said to me that the world-wide use of English—I have devoted a lot of years to it as a world-wide language—was used as an excuse to cover for our poverty in other languages. We must not make this mistake in the arts because we are riding a tiger and doing very well, and this is not the moment to take away the support.

20:14

[Baroness Hughes of Stretford]

My Lords, I, too, commend the noble Earl for bringing this debate to your Lordships’ House and for providing the opportunity to give voice to the groundswell of concerns about Michael Gove’s proposal for the English baccalaureate.

Unfortunately, as the noble Lord, Lord Clement-Jones, and others around the House have commented, the Secretary of State’s greatest success has been to forge a wide coalition of opposition, embracing not only the arts but sport, business, entrepreneurs, faith organisations, his own exam watchdog and many schools.

By adopting the language of the international baccalaureate, the Secretary of State would have us believe that the EBacc embodies the same principles and might enjoy similar acclaim. Yet the narrowness and rigidity of the EBacc could not be further from the international baccalaureate, in which, for example, students aged up to 16 years—the age we are talking about—are required to study not five but eight subjects, including arts, physical education, the humanities and technology. As we have heard this evening, can so many people in so many different sectors be wrong in their concerns about the EBacc? Four years before the first EBacc exams are taken, as the noble Lord, Lord Storey, and my noble friend Lady McIntosh, pointed out, we are already seeing schools not replacing arts teachers and reducing the number of hours and subject options in art, design, technology, music and drama.

The research that my noble friend referred to shows that last year 45% of schools cut courses, and this year 27% did so, with art, design, technology and the performing arts being the worst hit. Therefore, whether or not the Government finally decide, as the noble Baroness, Lady Perry, suggested, that there will be an individual EBacc certificate in the arts by 2017, it will be too late by then because it is the EBacc itself—this group of five subjects that my noble friend Lady Morris referred to, quoting Michael Gove as regards the “gold standard”—that is now driving schools and forcing the arts out of the curriculum, as my noble friend Lord Smith pointed out. Not only will that be to the detriment of many pupils but it will starve our economy of the creative and enterprising talent of the future. With Britain now a world leader in the creative industries, is it right to risk squandering that advantage from the point of view of both our young people and our economy?

So I ask the Minister, first: what are the Government doing to monitor the extent to which these subjects are being cut from the school curriculum, and when will they intervene to prevent further cuts and the loss of teaching capacity in the creative subjects? We could make an equally important case in respect of physical education and sport, and indeed, many are doing so. Similarly, business leaders have expressed concern about the impact of the EBacc on preparing students and equipping our economy with the skills of the future.

We on this side believe, like the CBI, that all students should continue to study English and maths up to the age of 18. Will the Government require all students to do so? Will the Government now listen to the groundswell of protest about the marginalisation of these key subjects and suspend the implementation of the EBacc while we consider more fully more imaginative changes to equip our young people and our economy for the 21st century, not for the 1950s?

20:17

[Baroness Garden of Frognal]

My Lords, I am most grateful to the noble Earl, Lord Clancarty, for stimulating this important debate on a subject about which he is clearly passionate, as are other noble Lords who have taken part. I entirely agree with him about the importance of the creative arts. This Government are fully committed to a rigorous and demanding arts education and believe that artistic education in all its forms should be made accessible to every child. We are looking systematically at all aspects of the curriculum and qualifications in schools. We have taken steps to address poor value vocational qualifications, with changes to performance tables from 2014. The new national curriculum will be introduced from September 2014, and from 2015 teaching of new English baccalaureate certificates will start. I am grateful to my noble friend Lady Perry for clarifying the difference between the EBacc, which is the performance measure, and the EBacc certificates, which are the composite parts.

All pupils should have access to high quality teaching in arts and creative subjects. That has become apparent from a number of noble Lords this evening. Arts subjects, music and design and technology remain in the national curriculum from primary school to the end of key stage 3. Students are entitled to take an arts subject in key stage 4. We will publish shortly the draft national curriculum. In reforming it, we aim to give teachers greater flexibility over how to teach, so that more children can be inspired by great teaching.

I reassure noble Lords that we are not removing or downgrading any cultural subject in the national curriculum. We believe that all pupils should have the opportunity to study a strong academic core to the age of 16. Other high performing jurisdictions already secure this for their young people; it should be no less so for England. The noble Baroness, Lady Kidron, and others referred to the importance of that key ability in maths and English.

The EBacc is designed to tackle the inequality of opportunity that saw only 10% of pupils in schools with a high proportion of children on free school meals tackle EBacc subjects in 2010. The figure this year is 41%. The EBacc is helping to drive the take-up of modern foreign languages, about which many noble Lords are concerned. The noble Baroness, Lady McIntosh, and my noble friends Lord Clement-Jones and Lord Watson, referred to the dramatic decline in modern languages when they ceased to be compulsory at key stage 4. We are certainly watching the effects of not having subjects as compulsory; however, there are no exact parallels between languages and the arts subjects in that way. The EBacc is not compulsory as an overarching qualification; it is still possible for schools to respond to their pupils’ needs through other qualifications.

The success of the EBacc does not mean the exclusion of other subjects, and schools which do well in the English baccalaureate also make time for artistic and cultural education and for sporting activities. There is time in the school day and week for them to do so. Strong schools, with good leaders, recognise that excellence in the arts helps drive academic success, and they use arts and cultural education to inspire and delight their students. That is why improving the quality of leadership is at the heart of the Government’s school reform programme. In response to the noble Lord, Lord Sutherland, Ofsted is already tasked with checking that schools are offering a rounded education. We will certainly be monitoring closely to ensure that that continues to be the case in the coming months and years.

Following on from Darren Henley’s excellent work to review musical and cultural education, we have published a national plan for music education. I echo the congratulations of the noble Lord, Lord Lipsey, on the well deserved OBE for Darren Henley in the honours list. We are also planning to publish a cultural education plan in the spring.

Noble Lords are suggesting that the Government are doing nothing to encourage arts and education. However, we are allocating £171 million over three years for the network of music education hubs, and I hope that that will address the enthusiasm of the noble Lord, Lord Aberdare, for music. We know that there is a decline in GCSEs in music, but we are looking at ways to encourage and revive the interest in music through these hubs.

We have the internationally renowned music and dance scheme, which supports exceptionally talented young musicians and dancers. We are funding the creation of a National Youth Dance Company, jointly with Arts Council England. Along with Arts Council England, we are supporting the expansion of the Sorrell Foundation’s art and design Saturday clubs. In response to the noble Baroness, Lady Whitaker, these clubs support the importance of design; they have had tremendous success so far.

With substantial support from the British Film Institute, we are developing a new national film academy. The noble Baroness, Lady Kidron, mentioned the importance of film. The noble Baroness, Lady McIntosh, also referred to encouraging the take-up of arts in different ways. We also have the Shakespeare schools festival to give more children the chance to stage a Shakespeare play in a theatre. Schools receive an RSC tool kit to help teachers bring Shakespeare alive. I have been to one or two of these Shakespeare in schools events; it is inspirational to see the youngsters coming alive reproducing Shakespeare on stage. Schools of all abilities are involved in that.

I have heard it said that by proposing English baccalaureate certificates only in EBacc subjects, we are devaluing arts subjects. The noble Baroness, Lady Morris, my noble friend Lord Storey and the noble Earl mentioned the concern that we are devaluing the arts subjects and that unless performance measures recognise achievements in arts subjects, school leaders will not devote time to them. I do not believe this to be true of good leaders. Let me reassure noble Lords that we are considering these issues and shortly we will be consulting on future accountability measures. I would add in respect of whether the arts should become a sixth pillar that the suitability of an examination structure that is based on limiting internal assessment of arts and cultural subjects would not necessarily lend itself to arts and cultural subjects which rely on the demonstration of practical skills and portfolios of work. It is something else to take into account if we are considering adding pillars to the English baccalaureate.

The interest of noble Lords in this debate is evidence of the passion that this subject rightly inspires. The Secretary of State for Education and the Minister for Culture recently met a range of people in the world of arts, including Sir John Sorrell and Sir Peter Bazalgette, to discuss how best to promote excellent arts education. They have asked our leaders in arts and culture to champion and promote practical experiences and opportunities to complement the national curriculum programmes of studies.

Perhaps I may pick up on one or two of the other points made in the debate. I echo the comments of the noble Baroness, Lady Kidron, that all disciplines are vital for our collective future, and those of the noble Baroness, Lady Hughes, about the need to monitor to see whether these subjects are going into decline as a result of the EBacc coming in. The right reverend Prelate the Bishop of Exeter reminded us of the importance of religion in music and arts education and, although not directly related to this debate, of the question about whether religion should be a compulsory part of education. I can assure him that all these issues are up for discussion as we move towards the new format for key stage 4. RE is a compulsory subject for pupils, who continue to take it at GCSE level in significant numbers.

The noble Baroness, Lady Hughes of Stretford, reminded us of the international baccalaureate qualification, which of course is taken at the age of 18, not 16. The English baccalaureate is the qualification taken at 16 years old.

[Baroness Hughes of Stretford]

There is in fact a middle years programme that is taken up to the age of 16 in the international baccalaureate. That is what I was referring to. Students up to the age of 16 are required to take eight subjects, not five.

[Baroness Garden of Frognal]

I apologise to the noble Baroness because I misunderstood her comment. The international baccalaureate certainly is a wonderfully rounded programme, but it is not suitable for all pupils—just as the English baccalaureate will not be suitable for all pupils. Schools will be able to opt for different ways of meeting the needs of their pupils. A number of noble Lords referred to the inspirational nature of the Olympic and Paralympic Games last year where we saw arts and music so brilliantly on show. They were a true credit to all the skills and talents that we have in this country.

I am conscious that I have not addressed all the issues that were raised in this brief debate, but I can see the strength of feeling in the House which no doubt will manifest itself again and will be relayed to the department when the discussions on these subjects take place. I thank all noble Lords for their wide-ranging and powerful contributions to this fascinating debate. I hope that I have reassured your Lordships that the Government are committed to the arts in the UK. We have demonstrated that commitment by investing more than £2.9 billion over this spending review period. We should never forget that a good education, including high quality arts and cultural education, has the power to change a child’s future, whatever their background. We should be proud of the UK’s international standing in the creative industries and acknowledge the invaluable part that the arts play in the life of the country.

Electoral Registration and Administration Bill

Monday 14th January 2013 Lords Chamber

Committee (2nd Day) (Continued)

20:28

Amendment 52

Moved by

[Lord Rennard]

52: Before Clause 13, insert the following new Clause—
“Provision for polling to take place at weekends
(1) Section 1 of the Fixed-term Parliaments Act 2011 (polling days for parliamentary general elections) is amended as follows.
(2) In subsection (2), leave out “The polling day” and insert “Polling”.
(3) In subsection (2), leave out “7 May 2015” and insert “conducted over the course of one day, or two consecutive days, between 2 May 2015 and 10 May 2015 inclusive”.
(4) In subsection (3), leave out “The polling day” and insert “Polling”.
(5) In subsection (3), leave out “the first Thursday” and insert “conducted over the course of one day, or two consecutive days, and in the first ten days”.
(6) In subsection (3), after “day” in the third line insert “or days”.
(7) In subsection (4)—
(a) leave out “the polling day” and insert “polling had been conducted”, (b) in paragraph (a) leave out “was appointed”,(c) for paragraph (b) substitute—“(b) was conducted before the first weekend in May”.(8) In subsection (5), after “day” insert “or days”.
(9) In subsection (5), leave out “is” and insert “are”.
(10) In subsection (7), after “day” insert “or days”.
(11) After subsection (7) insert—
“(8) The Prime Minister must by order made by statutory instrument specify the day, or days, on which polling is to be conducted under subsection (2) by 31 January 2014.
(9) The Prime Minister must by order made by statutory instrument specify the day, or days, on which polling is to be conducted under subsection (3) by a date no later than 15 months before the first weekend in May in the fifth calendar year following that in which polling had been conducted for the previous parliamentary general election.””

[Lord Rennard]

My Lords, at this stage of the evening I do not intend to go again through the arguments we had about weekend voting during the passage of the Fixed-term Parliaments Act. However, I am a long-standing advocate of a change to voting at the weekend, or at least for it to be considered. We have never held a proper pilot to assess whether more people might choose to vote if they were able to do so at the weekend. The amendment tabled in my name and that of my noble friend Lord Tyler seeks to give Parliament a chance to decide to hold the next general election over one or two days of the weekend following the presently scheduled date of 7 May 2015. This would permit time to consider properly all the issues about opening polling stations at the weekend and about, for example, religious observance.

20:30

The deliberate provision for polling to take place on two consecutive days would mean that no one need be disadvantaged by the requirements of their faith. Polling hours could perhaps be reduced if spread over two days to, say, 9am to 6pm, which would mitigate against potentially increased costs. To every practical objection to this measure, there is a practical answer. Those of us who campaign in elections know the frustration of trying to contact the working population of a whole constituency in the few hours between 6pm and 10pm, to remind them to vote. We know that electors who are contacted on polling day are much more likely to vote than are those who are not contacted. For that reason, if for no others, it is clearly wrong that the working population is so much less likely to meet someone on polling day asking them to go and vote than those who are retired and more likely to be at home during the day.

When we discussed the idea in principle of weekend voting during the passage of the Fixed-term Parliaments Bill, my noble and learned friend Lord Wallace of Tankerness said:

“I want to make clear that we are not ruling it out. I want to reassure the House that not including something in this Bill will not rule out the possibility of us returning to this issue”.—[Official Report, 15/3/2011; col. 175.]

Therefore, we are returning to it briefly this evening. On this occasion, I ask the Minister to consider moving beyond simply returning to the issue again in another Bill. We could move towards doing something about it. If this amendment is not quite the right one then there are alternatives. One alternative I have sometimes argued for is that we try weekend voting at the next European elections in 2014. Much of the rest of Europe votes on a Sunday anyway, so we would be bringing our arrangements into line with them by having voting on a Saturday and Sunday with votes counted on the Sunday evening at the same time as in the rest of the European Union.

I believe it may be much more convenient for many voters to be able to vote on a Saturday and Sunday than it is for them to have their schools disturbed, their children perhaps to have to be looked after, and for schools to be closed. I believe it is a bad sign to close the schools on a Thursday in order to vote when perhaps our children should be continuing to learn and parents should still be able to work. We can talk at great length about weekend voting, but it is a principle that should be considered, properly piloted, and if we pass the amendment it would allow proper time for consideration of it before the next general election. I beg to move.

[Lord Norton of Louth]

My Lords, I will make a couple of comments on the amendment. I am a bit wary of it. I rather shared the view of the Electoral Commission in their evidence to us:

“The Commission is clear, however, that any change should only be made if there is firm evidence that it would be of significant benefit to electors. At present, the evidence on weekend voting provides an insufficient basis on which to reach a definitive conclusion”.

Therefore we would need a far stronger evidence base before proceeding. Moving to this for the next election would be rather an experiment, on a bit too grand a scale. We need much better evidence before proceeding.

I raise a more general point that I have variously developed before. I am always concerned that discussing such proposals can amount to a form of displacement activity by politicians. Voter dissatisfaction and apathy have little to do with the process of voting. If people are motivated to vote, they will vote. To motivate people to vote we need to address policies and political behaviour. Politicians cannot say, “It is not us, it is the system”. I fear it is us. We need to be addressing that and doing so in a sustained manner. With amendments of this sort, however well intentioned—clearly they are, and there is a case for discussing it—my worry is that it actually risks masking a much more important debate that we need to have. We need to open it up on a much wider scale. There is the obvious point that if we make a change of the sort proposed by my noble friend this is perhaps not the appropriate time or Bill to do it. We have already messed around this afternoon with the Parliamentary Voting System and Constituencies Bill. I do not think that we need to be messing about now with the Fixed-term Parliaments Act.

[Baroness Hayter of Kentish Town]

My Lords, this is always an interesting one; it feels so natural that it must be easier to vote over two days than over one, and at a weekend. On the face of it, the proposal seems very attractive. However, following on from the noble Lord, Lord Norton, in all the doorstep work I have done—and I have done a fair amount—it has never been a complaint that I have heard. Although it sounds quite attractive, I have never heard people saying, “Why don’t we vote at the weekend?”. However, perhaps we should look to France. When we were discussing the amendment moved by the noble Lord, Lord Lexden, I think noble Lords were saying that we should follow France, which votes on a Sunday. Much more importantly, of course, they voted socialist on a Sunday, so we should definitely follow what France does.

It sounds attractive but we are perhaps in a closer place to the Government in that we await some evidence about whether this merely sounds attractive and easy, or whether it would do what I think all of us want and increase public engagement and accessibility for voters, which we are going to come on to in an important amendment shortly. What we need is evidence and some more thought on this, and we will then happily look at it. If evidence is brought to us that this would increase both turnout and engagement, we would respond quite positively. However, at the moment, we are slightly lacking that evidence.

[Lord Gardiner of Kimble]

My Lords, first, I thank my noble friend for moving this amendment, because it has given us an opportunity to consider the points on weekend voting. This amendment would amend the Fixed-term Parliaments Act 2011, to change the current position, whereby the date of the parliamentary general election is on a fixed day, to a position whereby the Prime Minister would specify by order that polling for the next general election could take place on any day, or on two consecutive days, between 2 May and 10 May 2015. The provision would then apply for subsequent general elections every five years over the course of one day, or two consecutive days, and within the first 10 days of May. I understand that this is to allow the Government to consider the case for weekend voting and to implement it at the next UK parliamentary general election in 2015 and at subsequent general elections. This is clearly an important issue.

As noble Lords will be aware, there are arguments both for and against moving polling day from the traditional Thursday to another day or days, perhaps at the weekend. Similarly, there are arguments for and against holding elections over more than one day. We know that moving to weekend voting would raise particular issues and concerns for certain faith groups. However, it is not obvious that moving polling day from the traditional Thursday to a Saturday or Sunday, or both, would make it easier for electors to vote.

The most recent assessment of opinion on this issue was a consultation exercise undertaken in 2008 by the previous Government, which made the findings public. The overall response was against a move to weekend voting, with some 53% of respondents taking that view. Additionally, where weekend voting has been tested in a small number of electoral voting pilots, the total take-up was generally around 2% to 3% of the overall total number of votes cast, and there is no evidence to suggest that it encouraged voters to vote who would not have otherwise done so.

For these reasons, I do not believe that this is the appropriate legislative vehicle to make such a change, or even to open up the possibility for the Prime Minister to make the change later without, as the amendment is drafted, the consent of either House. Moreover, alongside concerns about practicability, moving to weekend voting would also raise resource and cost issues. Importantly, an impact assessment undertaken by the Ministry of Justice in February 2010 under the previous Government concluded that moving from Thursday to weekend voting would increase costs significantly. Staff, polling station and counting costs would all rise with weekend voting, as would the costs of storing and securing ballot papers over two days at the weekend. The impact assessment estimated that, in total, costs would increase by around £58 million per general election. This clearly is not the primary factor, but it is one that we should consider in discussing this amendment.

Given that there is no clear evidence that the electorate would favour such a move to weekend voting, the Government have no current plans to move polling day for either the general or other elections to the weekend. However, they will keep under review ways in which the democratic process can be enhanced. For these reasons, I hope that my noble friend will agree to withdraw his amendment.

[Lord Rennard]

My Lords, these short debates about weekend voting are always frustrating for me. People always say, “Where is the evidence that it would be a popular thing to do?” yet we never have the pilots from which we could gain the evidence. It is rather like saying, “Well, I do not like Chinese food, but I have never been into a Chinese restaurant”. Unless you try something, you do not have much evidence. It seems to me that there is much evidence already there. We know that people of retirement age have a far greater propensity to vote than people of working age. Common sense tells you that a factor might be that retired people can vote easily during a Thursday when the whole of the day is at their disposal; whereas there are people of working age and in work, perhaps also of the age where they have children to drop off at school on a morning, who work a full day and pick up their kids from school and have much less time in the evening. Perhaps that might be the reason why fewer people who are not of retirement age vote. We do not know until we do these pilots.

We hear the argument about it costing more, but on the other hand, with things such as storing ballot papers, we vote in European elections on a Thursday and the ballot papers have to be stored until a Sunday and then counted. If you voted on a Saturday or Sunday, you could reduce those costs. However, I agree with the Minister that this is not the appropriate vehicle to make such a change and on that basis, I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

Clauses 13 and 14 agreed.

Clause 15 : Alteration of electoral registers: pending elections

Amendment 52A

Moved by

[Baroness Hayter of Kentish Town]

52A: Clause 15, page 9, line 12, at end insert—
“( ) In section 13(4), at end insert “provided that the registration officer shall not make any such changes if an election specified in section 13B(4) is scheduled to take place within 30 days of publication of the revised version of the register.””

[Baroness Hayter of Kentish Town]

My Lords. This amendment stand in the name of my noble and learned friend Lord Falconer of Thoroton and myself. It is quite a small amendment about trying to counter electoral fraud. Luckily, we do not have an enormous history of electoral fraud here, but if anyone did want to do it, the easy way is to add a small number of electors to the register fraudulently over several months. The problem is that the shorter the time between them doing it and when the election takes place, the harder it would be for that attempted fraud to be identified. That is the problem that this amendment tries to meet.

The police commissioner elections took place quickly after the new register, when there would not have been time to do any checks. Probably, that is not good practice, although we understand the reasons. The other issue is that we need the register in good time for an election so those of us sad people who go round door-knocking have time to identify everyone who is on it and give them the opportunity to meet us and hear what we have to say. I know that the Government acknowledge that there is possibly something in this that could be looked at. The Government are not convinced that it would reduce fraud, but would be happy to look at these implications with the electoral administrators. We welcome that.

We have a concern about this potential fraud and would therefore ask if the Government agree that we need to take steps to prevent the sort of events that we saw in the 2007 Slough postal vote frauds occurring again. Perhaps the Government could also explain why they think this amendment risks producing new risks, whereas it is obviously aimed at reducing the potential for fraud. I beg to move.

20:41

[Lord Gardiner of Kimble]

My Lords, I thank the noble Baroness for bringing forward this amendment. As I understand it, the amendment seeks to provide that those electors who remain on the register following the canvass would retain their existing electoral number if an election were to take place within 30 days of the publication of the register.

The amendment raises a number of practical considerations and could make the process for compiling the register, and the register itself, more complex. It may also result in additional costs for electoral registration officers if their IT systems have to be adjusted to meet these new requirements.

It is not certain that the amendment would necessarily address the concerns that were quite rightly raised by the noble Baroness, especially as implementing the proposed change could take up the time of EROs that could more usefully be spent on other matters arising from their registration duties. Of course, individual electoral registration is being introduced to tackle electoral fraud and to improve the integrity of our electoral system, in particular the electoral register.

The proposed change could lead to confusion in the data being included on the register; for example, it is not clear what would happen when electors are removed from the register following an annual canvass. If it is intended that the numbers for such electors are not to be used on the new register, this would result in gaps in the numbering of electors on the register. It is not clear how electors who are added to the register would be numbered; it may mean that a different numbering system would be used for new electors. This could mean that persons living at the same address are subject to different numbering systems and their names could appear on different parts of the register, which I understand could be an issue for the logistics of producing and distributing poll cards. When a revised register is published, parties will in any event need to update the data they hold to reflect changes to the register; that is, persons removed and added to the register.

On the face of it, this amendment could bring added complexity and cost to the electoral registration process without bringing the obvious benefit that I know the noble Baroness is focused on, which is the reduction of electoral fraud. For those reasons, I ask the noble Baroness to withdraw her amendment.

[Baroness Hayter of Kentish Town]

I thank the Minister for that. Certainly, we do not want to add complexity. As someone who has gone round knocking on doors, the last thing we want is different numbers within the same households, for reasons that I think we all understand.

I am grateful to the Minister as I think I heard him say that he understands what we are trying to avoid. If the Government or the Electoral Commission can perhaps work with electoral officers and look at that issue of having time to check on fraud, we will leave it to their good offices to do that. On that basis, I withdraw the amendment.

Amendment 52A withdrawn.

Clause 15 agreed.

Clauses 16 and 17 agreed.

Amendment 53

Moved by

[Lord Pannick]

53: After Clause 17, insert the following new Clause—
“Voting procedure
(1) Schedule 1 to the Representation of the People Act 1983 (parliamentary elections rules) is amended as follows.
(2) In paragraph 37 (voting procedure) after sub-paragraph (6) insert—
“(7) A voter who is in the polling station or in a queue outside the polling station for the purpose of voting at the time specified for the close of the poll shall be entitled to apply for a ballot paper under sub-paragraph 1 above and a ballot paper shall be delivered and the voter entitled to vote in accordance with this paragraph.””

[Lord Pannick]

My Lords, this amendment is tabled in the name of the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, and three members of that committee: the noble Lords, Lord Lexden and Lord Lang of Monkton, and myself. The amendment addresses a mischief that occurred at the previous general election and which may recur at future elections, however careful the preparations.

The mischief is that eligible voters who present themselves at the polling station before the close of the poll at 10 pm are unable to vote if the relevant officials do not issue them with the ballot paper to which they are entitled by 10 pm. At the previous general election in 2010, some 1,200 voters queuing at 27 polling stations in 16 different constituencies were adversely affected in this manner.

Your Lordships’ Constitution Committee considered the matter. We concluded that eligible voters who present themselves at the polling station before it closes at 10 pm should not be denied a vote because they are not given a ballot paper by 10 pm, perhaps because many other voters arrive at or around the same time, or perhaps because the administration of the polling station is less than efficient. The right to vote is precisely that—a fundamental right. It should not be defeated by circumstances outside the control of the voter. Indeed, when we are rightly concerned to do everything possible to encourage people to vote, we should not be putting obstacles in the way of eligible voters who do make the effort to attend at a polling station and who are then frustrated by their inability to cast a vote.

The Electoral Commission has expressed its strong support for this amendment for very similar reasons. The amendment commands, I think, widespread support across the House. The arguments which have so far been presented by the Government in answer to the amendment are, your Lordships may think, very weak indeed. First, it is said by the Government that the voter need not wait until just before 10 pm. He or she could or should vote earlier. However, for many people, voting early is not an option because of work or family commitments. In any event, close of poll is 10 pm. Voters should not be required to guess how far in advance of 10 pm they need to attend at the polling station in order to be sure of being allowed to vote.

The second argument presented by the Government is that such a change in the law would cause practical problems. That is very unconvincing. All that needs to happen is that at 10 pm the polling officer closes the door of the polling station, or if, unhappily, there is a queue outside, stands at the back of the queue to ensure that anyone arriving after 10 pm cannot join the queue. The Electoral Commission has pointed out that the Scottish Government introduced such a reform in 2011. At the Scottish council elections last year, the change in the law enabled voting by three people who arrived by 10 pm but would otherwise have been denied a ballot paper. There were no practical difficulties. The Electoral Commission issued sensible and practical guidance to presiding officers.

The third argument advanced in opposition to this change in the law is that it is unnecessary, as the lessons have been learnt from the experience of the 2010 general election. The answer is that, however good the preparation may be, there is always a risk of a queue building up which prevents one or more eligible voters from voting because they have not received a ballot paper by 10 pm. Issuing a ballot paper may take a minute or two and, if several people arrive in the period just before 10 pm, a queue can easily build up. The risk of a queue is all the greater if ballot papers are being handed out for local as well as general elections. The Electoral Commission has rightly said that,

“no degree of planning alone can entirely mitigate the potential risk of queues at the close of poll”.

The final argument which the Government advance is that not many voters will be adversely affected. However, even one eligible voter denied a vote in these circumstances is one too many. The Government cannot have it both ways. They cannot say both that very few voters will be affected and that the amendment will cause practical problems. This amendment is correct in principle, it is workable in practice and it is much needed. I beg to move.

[Baroness Jay of Paddington]

My Lords, as always, the noble Lord, Lord Pannick, has presented the amendment with enormous clarity and great conviction. As chair of the Constitution Committee, I can say that we have been working on this question for some time. We held a stand-alone inquiry on it in the autumn of 2011 and published our first report in January 2012. The most interesting thing about the difference between the report that we issued then and our subsequent scrutiny report on the Bill that is before your Lordships’ Committee this evening is that the Electoral Commission changed its mind between the two reports. That is significant. It looked at the evidence that we had taken and engaged in extensive correspondence and “offline” discussion with us and came back in October with the report from which the noble Lord, Lord Pannick, has quoted extensively. I think that it was convinced by the arguments that we made—I am sure that it was by others, too, and took other evidence—and, at the same time, the Government, as the noble Lord, Lord Pannick, has said, have continued to advance the same arguments. We heard those arguments last Wednesday when Chloe Smith represented the Government at a meeting of the Constitution Committee and put forward precisely the arguments which the noble Lord, Lord Pannick, has described.

It seems obvious that the fundamental right to vote is the question on which we should focus, and that the law in relation to this matter focuses almost exclusively on the rights and responsibilities of the statutory role of a returning officer and not on the right to vote. If one looks at it from the perspective of the voter, as the noble Lord, Lord Pannick, again has said, we can be talking about small numbers, but it is worth remembering that the Electoral Commission reckons that around 1,200 people were affected in 2010 by the law as it stands and the individual is very important in this respect. I would just add—not that it is significant in terms of statistical comparisons, but it is still relevant—that, in 47 constituencies in the 2010 election, fewer than 1,200 votes formed the majority, and in 28 constituencies, fewer than 600 votes formed the majority. In a sense, this can be significant, and if one puts value on the individual vote, as I certainly do, then the human right to vote is clearly very important.

The argument which was very current before our discussions with the Electoral Commission last year was that the law as it stood was secure. The Constitution Committee challenged this because when we looked at the two cases that were being relied on at that stage—one from 1901 and one from 2001, almost exactly 100 years later—it was very clear that these depended on the impact and role of the returning officers and not on the individual voter. We think that the time has come to achieve clarity about the rights and responsibilities of the individual voter, which could be done by this simple amendment. The noble Lord, Lord Pannick, has already referred to the example of Scotland. I would refer also to the example of the United States, where in the presidential elections last November there were certain polling areas where queues were in place two hours after the official closing of the poll and yet the votes were still counted. This is something that we need to look at very swiftly and in time for the 2015 election.

[Lord Tyler]

My Lords, I am very grateful to my noble friend. We strongly support the amendment. The fact that it is presented to the Committee by four very distinguished members of your Lordships’ Constitution Committee gives it rather special significance.

In general, we should trust the presiding officer in the polling station to use his or her common sense. It is their role to use their discretion in that respect. However, if anything, they should surely seek to give every opportunity to the elector who has come in good faith, and in good time in most circumstances, to vote.

I am reminded of an incident when I went at about 11 am to a very remote polling station in a draughty caravan in the middle of Bodmin Moor in a winter election. It was the smallest electorate in my then constituency; indeed, there were only 18 people on the electoral register, and 17 of them had long since voted at 11 am. Everybody knew that the 18th person had actually died in the last few weeks before the poll. Yet of course the presiding officer and his assistant had to stay there in that bitterly cold caravan for the following 11 hours.

I give that example because, of course, we do not know how many presiding officers in May 2010 used their common sense to give a ballot paper to those who were actually within the building and standing in a queue ready to vote, having been there perhaps for some time, without already being given a ballot paper. We only know about the ones who were kept out by those who thought perhaps they were doing precisely the right thing in the circumstances—the 1,200. However, in my view it is incumbent on this House and the Government to try to clarify this situation. It is clearly the case that in May 2010 a large number of people were disenfranchised by the circumstances of the particular polling station and by a sensible approach not being taken in the terms to which the noble Baroness so eloquently referred—the human right to vote in a democratic society.

21:00

The Government, as has already been said, were quick to say that legislation was not needed, and they continue to claim that the amendment is not necessary. Surely the question that must be before the Committee today is: what harm would it do to pass this amendment to clarify the situation and make sure that we do our very best to enable everybody to vote who should be allowed to vote?

As I mentioned previously, I sit on the cross-party informal advisory group to the Electoral Commission; and therefore I take very seriously the point that the noble Baroness, Lady Jay, has just made. The commission previously thought that it was not necessary to make this change. It now enthusiastically supports this change. I hope that the Committee will permit me to repeat the quotation which I think the noble Lord, Lord Pannick, referred to earlier, and to give it in absolutely specific terms about the Scottish local government experience, because I think that it is extremely relevant. I cannot see how my noble friend the Minister can ignore this recommendation from our official advisers. The Electoral Commission said:

“We believe that the Scottish Government’s legislative provision to enable the issuing of ballot papers to those who have arrived at the polling station by the close of poll is a wise backstop which puts the interests of voters first, and we continue to recommend that similar provisions be made for all other statutory elections in the UK”.

That could not be clearer. I believe that the logic is impeccable, and it comes from our official advisers. Parliament has recently—and continuously—said that we must listen to the Electoral Commission particularly on these sorts of issues because it is so easy otherwise for Parliament to take a partisan approach to this sort of issue.

I simply ask my noble friends on the Front Bench to recognise that it would be unnecessary and certainly counterproductive to continue to fight this amendment. They should accept it or commit to an alternative with the same effect on Report. I look forward to a very positive response from my noble friend.

[Lord Norton of Louth]

My Lords, it is rather encouraging at this time of night if two Peers rise at the same time. I was on the Constitution Committee when this matter was discussed and I rise to support the amendment as well. I think the case for it is compelling. If an elector has made the effort to be there by 10 o’clock at night they should have the right to vote. Following on from what I was saying earlier, I think the last thing we should be doing is discouraging voters who want to vote from actually voting. I think that it is imperative that we facilitate the opportunity to do so.

Given what has been said I do not want to speak at length. I just want to pick up on one point that has already been referred to, and that is not so much defining a queue as determining who is in it at 10 o’clock. We have had reference to experience elsewhere. We do not actually need to go as far as Scotland or the United States. We can do it in terms of our own House—because of course if there is a queue outside after eight minutes, as I understand it, one of the doorkeepers just stands behind the queue and stops anybody else coming in. It is fairly straightforward. All that needs to be done is straightforward guidance to returning officers as to how to deal with that in a practical way. I do not see any fantastic difficulty involved, but a fundamental principle is engaged by the amendment, and we should facilitate those voters who have made the effort to get to the polling station to vote if they are there by 10 o’clock.

[Lord Lexden]

My Lords, I shall make a few comments on the amendment, to which I added my name. As the noble Lord, Lord Pannick, the noble Baroness, Lady Jay, and other noble Lords have made clear, the need for the change has been questioned on the grounds that at the previous election, problems arose in only a small number of polling stations. As they have said, that surely cannot be a strong argument against the amendment. Everyone who wishes to vote and arrives at a polling station before 10 pm must be accommodated. That is the principle from which we must not deviate. The comparatively few cases of difficulty that occurred in the 2010 election were widely publicised and aroused considerable concern, as they were broadcast on television throughout the country. That does no good for the image and reputation of our electoral system. A repetition simply must be avoided.

It has also been said that all voters should be able to make their way to the polling station well before 10 pm. Who can tell what personal difficulty or domestic problem might arise in the case of particular voters, causing them to arrive at a polling station at the last minute? The country needs the assurance that the official in charge of each polling station will devise clear, practical and sensible arrangements well understood by his or her colleagues running the station to enable all those who arrive before 10 pm to cast their votes. That is why the amendment is to be commended.

[Baroness Hayter of Kentish Town]

My Lords, it is very hard to imagine that the Government will say anything but yes to the amendment—no, I do not think that I am quite getting that message back.

I am sorry about that. I hope that between now and Report, the Government will think about the amendment seriously. The numbers here may not be as full as they were earlier, but it is clear that it is pretty widely supported. We on all these Benches fully support it. As we have heard, so does the Electoral Commission. The noble Lord, Lord Tyler, suggested that it has been left up to individual assistant returning officers. It is not fair to put it on to their shoulders, particularly if there is a TV camera looking over them at that point, whether they decide to be sensible or not; whether the queue is inside or outside; or whether, if there is more than one ballot paper because we have a multiple election, as we often do, and people have one in their hand but not the other, they are to deny them that vote. It is not fair for the decision to be on the person in charge of that polling station.

I also do not think that it is fair that if you turn up at 10 o’clock in a nice, quiet area you can wander in—as sometimes one does in the Lobby here when there are not many on our side—but if you as an elector happen to turn up in a busy area, you will be discriminated against because other people will also have turned up late.

I had not heard of the government advice to turn up early. That is the reverse of what we had when I was young: it was called drinking-up time. We used to be allowed 10 minutes that way. That suggests that the Government want us all to be there at 10 minutes to the hour. We do risk assessments elsewhere, where we look at likelihood and impact. I think that the Government are right that the likelihood of this is low. Returning officers have realised that there are cameras and that they should not do that again. The likelihood may be low, but the impact will be high both on those going to the polling station—it is serious that they cannot vote—and on those watching on television people who have turned out to vote but who are not allowed to. We do not want that. I hope that the Government will think again about this.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I thought that I had had enough excitement for today, but this is an interesting debate. At first sight, everyone was positively affronted by the fact that people intending to vote found themselves in a queue and were unable to do so. At the previous election it was a disgrace. If I remember the press reports right, one of the queues was well over 100 people long. It was clearly a huge error on the part of the people responsible for organising the polling stations. Contrary to what has been implied, these were not people turning up at the last minute. The queues had formed during the day and existed for quite a lot of the evening. Those of us involved in elections will know that the peak time for voting tends to be between 5 pm and about 8 pm. If a queue has formed then—it can happen; I think that most of us will have seen that—one would hope it is not big enough to disadvantage voters who come along later. However, the size of the queues at the previous election—which were reported during the day—clearly impaired the ability of people to vote, and that is not a good thing.

I am going to disappoint noble Lords, particularly those on the Constitution Committee, because I know that my honourable friend Chloe Smith talked to them last Wednesday. The answers she gave them are very similar to the answers I am going to give. I hope that the House will forgive me. It may be that those answers are right. We have to think through a change of this nature and think of the consequences. The Constitution Committee, as the noble Lords, Lord Pannick and Lord Lexden, and the noble Baroness, Lady Jay, said, also supported this aim and obviously has given this matter a great deal of thought. It takes the view that this would give greater clarity. We need to write the discretion of the polling station clerk into law so that they can do that. I appreciate the sentiment behind the amendment, but we are not entirely sure that it would help to clarify the present arrangements.

While it might seem initially like a sensible response to the queueing at 9.40 pm, there is a real danger of creating unintended consequences and reducing the clarity and certainty of the law. As it stands, the law is very clear—a ballot paper cannot be issued after 10 pm. Elections are quite precise affairs. Votes are a matter of quite fine delineation and that is particularly true in local government elections. Although queues in local government elections are relatively rare, they were referred to in the Scottish local government elections. Returning officers, polling station clerks and voters know where they stand because it is enshrined in law. The present certainty around the time of close of poll and what close of poll actually means—no issuing of the ballot paper—also facilitates other aspects, for example, the requirement that exit polls cannot be published until the polls have closed. If the polls have not closed somewhere because there is a queue this makes it much more difficult for those responsible for public exit polls to be sure that anything they say may not influence a potential voter. It may sound pedantic but we are talking about something which requires precision. What would be the impact of this on the timing of results if a significant number of electors queued up? I do not think it is beyond the wit of certain people to have a bit of fun with this and to form a queue. It can be done and it might occur. There is also the risk that some people might use this as an opportunity to make a public statement about elections, particularly in areas where tensions exist.

It has been remarked that controlling and delineating a queue is quite difficult. Where is a queue? What is a queue? Most of us think that we know one when we see one, but not many of us would like to take responsibility for actually harnessing a queue, particularly without the power of a police officer. After all, the police officer is not acting under the instructions of the returning officer. A police officer would not wish to interfere with what constituted a queue, while those administering the election might be better off issuing ballot papers rather than trying to organise a queue. I am suggesting that there are factors of people control and definition that are important.

21:15

When the Electoral Commission reported on the 2010 queues, it identified that a major factor was ineffective planning by returning officers. I think that most noble Lords would agree that in any circumstances in which queues appear, there must be something wrong with the arrangements. Indeed, it is widely rumoured that some returning officers took turnout figures from local elections and had not actually thought through the fact that figures for general elections, even in these days when we find it difficult to persuade people to vote, are considerably higher than that.

The Government take the view that the responsibility for ensuring that there are no queues at polling stations is not the responsibility of the voter but should be the responsibility of the returning officers by providing sufficient staff to deal with predicted levels of turnout. That must be the right way forward, and I think that all noble Lords will know that lessons will have been learnt from the 2010 queues.

[Baroness Hayter of Kentish Town]

The Minister is spending quite a lot of time on the word “queues”. It would be helpful, not least for those who tabled the amendment, if he could say whether the Government would also have a problem if the amendment said,

“A voter who is in the polling station … at the time specified … shall be entitled to apply for a ballot paper”,

or if it is simply the matter of the queues that they have a problem with.

[Lord Taylor of Holbeach]

The noble Baroness makes an interesting suggestion. It is rather like the doorkeepers here keeping the doors open after eight minutes; in exactly the same way, it is quite difficult to close the doors. It is definable, though, and I accept what the noble Baroness says. It is easier to manage a building in which the writ of the polling clerks actually operates than perhaps a street scene, where it would be quite difficult for polling clerks to define to an individual person that they were outside the scope of the queue because they joined the queue after 10 pm. That is in effect what we are having to suggest, is it not?

[Lord Tyler]

I am grateful to my noble friend for what he has just said because it showed an openness of mind that I confess I have not previously witnessed from Ministers on this issue. I wonder if I could take this a step further: has he any evidence that every single presiding officer in every single polling station in the country did not take what I would regard as the common-sense view, when someone was standing there in the polling station ready to get a ballot paper when the clock struck 10 pm, and issue them with a ballot paper?

The Minister has referred to exit polls. I do not think that Parliament should worry too much about those who conduct exit polls. Those polls are taken only when people come out of the polling station, so frankly they are not relevant in the present circumstances to what we have been discussing. However, I am very encouraged by his openness of mind; perhaps with an appropriate tweak to this amendment, we might all make some progress.

[Baroness Jay of Paddington]

My Lords, before the Minister replies, I would like to add one sentence: one of the legal advisers to the Constitution Committee said that he thought it was beyond common sense to suggest that it was impossible for the parliamentary draftsmen to define a queue in terms that would be properly understood in an Act or a piece of law.

[Lord Taylor of Holbeach]

I do not know; I am not a parliamentary draftsman, but I would hesitate to define a queue that stopped existing at 10 pm so that part of the queue was within a queue and another part was in a non-queue.

I am interested in what the noble Lord said. I think that he has misunderstood the point about exit polls. They cannot be published until polls have closed, for fear that they might influence people who have not yet voted. Therefore, voters who are queuing up could be listening to the radio and getting an exit poll, and that could influence the outcome. I am sorry, but that is the very purist view about the publication of exit polls. This shows the importance of defining these matters quite strictly, because one thing about elections is that you do not want people saying, “It is not fair”. That is what noble Lords are saying about people who have been excluded from voting because they were not given the opportunity of getting a ballot paper and casting it. I accept that: it was not acceptable. I suggest, however, that the way to deal with it is to ensure that the resources to process voters are adequate to ensure that queuing is not a problem.

I am delighted that my noble friend thinks I have an openness of mind; I always have an openness of mind and think it is very important in politics to have one. However, that does not necessarily mean that I am going to be able to come back with a response that is more positive than that which I have given previously. Noble Lords should understand that. The definition that lies behind the current arrangements provides clarity for both voters and those responsible for managing electoral processes, without any ambiguity at all. The Government would not wish to put on the statute book a provision which is not only unclear—because, although the noble Baroness, Lady Jay, says that it should be possible to make it clear what a queue is, I think it would be quite difficult—but might also send a message that queues are acceptable; that as long as the resources are adequate, if there happens to be a queue formed, then it is perfectly all right. I do not believe that that is the case; I think that those responsible for organising elections should make adequate provision to process voters so that queues do not form. That is the right way to proceed.

[Lord Norton of Louth]

I am very interested in the issues for which the Minister is identifying the problems and unintended consequences. Does he have evidence that any of these have occurred in the cases where the practice already exists? I wonder whether the words “holes” and “digging” come to mind.

[Lord Taylor of Holbeach]

I was not aware that I was in a hole, but I may be. I do not know what the noble Lord is referring to. Is he referring to the Scottish experience, for example?

[Lord Norton of Louth]

Yes.

[Lord Taylor of Holbeach]

There is no experience there to suggest that there is any problem; the numbers involved are very small indeed. The noble Baroness—or possibly the noble Lord, Lord Pannick—talked about three voters. The note I have here says that possibly 10 voters may have been issued with a ballot paper after 10 pm under the more liberal regimes. This is nowhere near the scale of the 2010 general election situation here. I should say that in the United States, the majority of queues that form there are the result of mechanical voting and the breakdown of the technology used for voting. That is not the same sort of problem that we are talking about here.

I hope I have given noble Lords a run-down of the difficulties that Parliament would face if it chose to be more flexible in this area. I hope the noble Lord will feel free to withdraw his amendment.

[Lord Pannick]

I am very grateful to all noble Lords who have spoken in this interesting debate, not least to the Minister, despite his surprising failure to fulfil the expectation of the noble Baroness, Lady Hayter, and simply say yes to this amendment. The noble Lord recognised that at first sight, everyone would see the force of this amendment. I would hope that any reasonable observer would retain that opinion after considering the matter at length.

I cannot for my part see that the amendment would introduce any lack of clarity into this area of the law or that any minimal reduction in clarity should outweigh the fundamental right to vote. Concern about exit polls, deliberate queue forming and problems about what is a queue, all of which are factors to which the Minister referred, certainly demonstrate the noble Lord’s considerable debating skills. But whether these are realistic problems are matters on which I would take a different view. For my part, I would be very doubtful that a queue needs to be defined. I would be satisfied that a polling officer would be able to address any problem, not least with the assistance of any relevant guidance from the Electoral Commission and would know a queue when he or she saw one.

I will withdraw the amendment, not least because it would be inappropriate to vote on a 10 pm rule as the hour approaches 10 pm. There certainly would be no need for the doorkeepers to stand at the back of any queue were we to vote tonight. However, I say to the Minister that we will return to this matter on Report. I will carefully consider of course what he has said when I have read the debate. But at the moment I am wholly unconvinced by the arguments that he has put forward. I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Clauses 18 to 20 agreed.

Amendment 54 not moved.

Clause 21 agreed.

Amendment 55

Moved by

[Lord Norton of Louth]

55: After Clause 21, insert the following new Clause—
“Repeal of the edited version of the electoral register
With effect from 1 December 2013, the provisions of the Representation of the People Act (England and Wales) (Amendment) Regulations 2002 (SI 2002/1871), the Representation of the People Act (Scotland) (Amendment) Regulations 2002 (SI 2002/1872), and the Representation of the People Act (Northern Ireland) (Amendment) Regulations 2002 (SI 2002/1873) in respect of the edited version of the Electoral Register shall cease to have effect and no further versions of the edited Electoral Register shall be produced.”

[Lord Norton of Louth]

My Lords, in moving Amendment 55, I shall speak also to Amendments 56 and 57. As I would hope would be fairly obvious, Amendments 56 and 57 are alternatives should Amendment 55 not find favour. The amendments address the issue of the edited version of the electoral register. My starting point is that the current position in respect of personal data supplied by electors is not sustainable. Some electors find that they are included in the edited version, even though they have no wish to be included. Some find their personal data being made available through organisations selling data taken from the register, on occasion apparently even though they have opted out of being included in the edited version.

By introducing individual electoral registration, the Bill goes some way to addressing the problem. It means that each elector has to make a decision as to whether they wish to opt out of the edited version of the register, whereas at present the head of the household may make that decision, which could mean a decision taken, for instance, by an official on behalf of students residing in college. The Bill, however, does not go far enough. The retention of the edited version raises a fundamental issue of principle. It entails the harvesting and sale of personal data as a by-product of a civic duty imposed on citizens.

The Political and Constitutional Reform Committee of the House of Commons, as well as the Electoral Commission and the Association of Electoral Administrators have argued that the edited register should be abolished. As the Political and Constitutional Reform Committee has argued:

“Whatever benefit it might bring, we cannot justify the sale to commercial organisations of personal details gathered by the Government for electoral purposes”.

The Electoral Commission has reiterated its support for abolition of the edited version in its briefing notes on this Bill. As it notes, prohibiting the production and sale of the register is particularly important, given the need to maintain people’s confidence in the security of their personal details. In December 2011, the Guardian editorialised that the edited register,

“lingers on, a travesty of the democratic process that sullies the relationship between voter and state, and illustrates just how casually politicians think about democracy”.

There are then objections of principle to having an edited register. There are problems with the mechanism by which the names of electors are included. When the sale of the full electoral register was deemed illegal, the edited version was introduced with an opt-out provision. If one does not opt out of having one’s name included, it is assumed that one wants one’s name included in the edited register. The Government cannot be certain that those whose names appear in the edited version of the register want their names to be included. The extent to which the opt-out provisions are explained to electors appears to differ, but even if it was explained on a consistent and prominent basis, we still cannot be sure that the edited version comprises the names solely of those who wish their names to appear.

There are thus significant problems arising from the generation and publication of an edited register. At the heart of it, however, is an issue of principle. I am familiar with the arguments for its retention which are, essentially, practical arguments and are variously advanced in the magazine Parliamentary Brief and in the other place by Dan Rogerson. They do not engage with the issue of principle. The argument is that the edited version brings economic benefits because of the use made of it by commercial organisations. I understand that the Government were considering abolishing the register but have now been swayed by this argument. One would have thought that it was obvious why commercial organisations bought the edited register but this seems only now to have dawned on the Government.

There is a separate argument—essentially a public good argument—that some bodies use the edited version for altruistic reasons or for purposes that have a public benefit, such as tracing lost family members. I would have thought that the benefit is limited, given the scale of electors opting out of the edited register, and that there is a case for allowing bodies access to the full register where they can meet a public benefit test.

In response to the report of the Constitutional and Political Reform Committee, the Government said the arguments were “finely balanced”. In terms of principle, I am not sure that they are. I think principle trumps any commercial benefit. There is no public benefit in selling the edited register, other than a broad and incidental benefit in that it helps commercial organisations to trade, but that benefit would apply in all sorts of contexts where firms could operate in a way that conflicts with basic principles, be they in relation to the franchise or, say, working practices.

Amendment 55 thus prohibits the production and sale of the edited version of the register prior to the commencement of individual electoral registration in 2014. That is the clear-cut option. It gets rid of the edited register. That is my preferred option. If, however, the Government wish to persevere with an edited register—I would prefer that they did not—then Amendments 56 and 57 modify the existing arrangements. Amendment 56 is designed to get the Government thinking about who should have access to the edited register. It provides that only bodies designated by the Secretary of State as having a legitimate purpose for seeking access should be allowed to purchase it. My preference, as I have indicated, would be to abolish the edited version and introduce a public benefit test to allow bodies, other than presently permitted to do so, to have access to the full register. However, I put the amendment down to encourage reflection on the point.

Of the alternative options, Amendment 57 is the important one. This also engages an important principle. If—I stress if—the edited register is to be maintained, then it is essential that we move from an opt-out provision to an opt-in provision. In other words, electors should be included in the edited register only if they have explicitly given their consent to their inclusion. It is not sufficient to assume that they wish to be included if they do not opt out. Consent must be given rather than assumed.

The Government’s response may be that, although desirable in principle, there are practical difficulties, perhaps insurmountable problems, in introducing an opt-in provision. If that is the argument, then there is a clear alternative: get rid of the edited register. The choice is between Amendments 55 and 57. Either get rid of the edited register or introduce an opt-in provision. Leaving the situation as it is with the edited register is neither acceptable nor sustainable. I invite the Minister to indicate the Government’s preference. If he merely repeats the mantra that the arguments are finely balanced but things will remain as they are, we will be having this debate on further occasions. I beg to move.

[Lord Tyler]

My Lords, my noble friend Lord Norton of Louth is absolutely right to raise this issue in this context because the change to individual electoral registration provides a precise opportunity to think about this matter again. As he properly said, it already improves the situation and it is the right moment to be looking at this issue.

However, I confess that I am somewhat bemused. The most persuasive case for retaining the edited register has come from charities and credit agencies, both of which have a proper and natural interest that we should recognise. Theirs is a proper use of this data. It is rather unusual to hear a Conservative, of all people, apparently decrying that very proper interest of such organisations in accurate data of this sort.

It may be that the noble Lord, Lord Norton, is introducing a new idea, as he has done just now, by suggesting that some organisations of that sort should have access to the full register. That brings us to a very difficult problem of definition because under Amendment 56, he is apparently defining what a commercial purpose is. A credit agency would certainly be a commercial purpose. Is seeking to raise money for a charity not also a commercial purpose? I find it slightly bewitching at this time of night that a dedicated Conservative Peer appears to denigrate the idea of having a commercial purpose at all, as if it is somehow a disreputable activity. I therefore have a problem of definition under Amendment 56.

However, I return to my original point. It is perfectly right, proper and appropriate that we should ask the Government at this stage to be thinking about this matter. Amendment 57 is clearly the least objectionable option that the noble Lord has put forward, but I wonder whether, if electors had to opt into an edited register, many would do so and whether the whole exercise would become a wasteful bureaucratic nightmare. The opt-in option would, in that sense, be a red herring.

However, this is obviously the right moment to be asking Ministers to think again, and I hope that my noble friend on the Front Bench will do just that. If he is unable to make progress in persuading the Committee in one direction or another, perhaps this is a matter that we will have to return to on Report.

[Lord Taylor of Holbeach]

My Lords, I welcome that contribution from my noble friend Lord Tyler because he points to the fact that commercial activity is highly desired by this Government. We look for the growth agenda and when people are looking for a job, they perhaps think that that is a bigger principle than anything that my noble friend Lord Norton of Louth may have raised.

I should make it clear that, before 2002, the full register was available for purchase by commercial organisations. There was no opt-out and no edited version was available. The edited version was produced in order to protect individuals who did not want such purchases to happen, and that opt-out arrangement remains current and will continue through the change to individual voter registration.

There has been discussion with interested parties on this matter. This is not the Government making their mind up without having discussed these matters with commercial organisations and electoral organisers. The Government have decided, on balance, to retain the edited register and the current opt-out arrangements. However, were the edited register to be abolished, there would be strong pressure for increased access to the full electoral register, from which no one can opt out. The Government are concerned about the potential impact this could have on registration rates; if people did not want to be removed from this register by an opt-out, they may choose not to register at all. On balance, the Government believe that an edited register from which electors can choose to opt out is the right outcome. It is worth noting, as I said before, that before the creation of the edited register in 2002, the full electoral register, including everyone’s name, address and details, was available for purchase by any commercial or other organisation.

Amendment 56 is, as my noble friend Lord Norton of Louth says, a little by way of an “either/or”. It would prohibit the use of an edited edition of the electoral register for commercial purposes, and require the Secretary of State to define designated organisations. We are aware that some within the electoral community have argued that data collected for electoral purposes should not be used for commercial gain. On the other hand, I have presented the case for the use of the register as an aid to business and commerce. I hope that my noble friend will take that seriously. Others have argued that the edited register provides significant economic and social benefits. Crucially, anyone who does not wish their details to be used for commercial—or any other—purposes is able to opt out of the edited register.

Under IER, registration forms will also include a statement on the processing of the data supplied by the individual, including the uses of the registers. The Government are reviewing the name and description of the two versions of the electoral register to ensure that it is as clear as possible to registering voters what the circumstances are and to enable them to make a fully informed choice. Given this important safeguard, I see no reason to limit the uses to which the edited register can be put.

My noble friend’s Amendment 57 would remove the current opt-out arrangements for the edited version of the electoral register, in favour of an opt- in. The Government take the handling of personal information seriously and believe that providing electors with a choice to opt out, alongside sufficient information—of which I have given an indication to my noble friend—to allow the individual to make an informed choice, provides appropriate protection and control. Electors will also be familiar with the choice of an opt-out; this has been in operation for a decade now.

However, we believe that the current system, where most electors are asked to make a fresh choice each year about whether they wish to opt out, is unnecessary. We are therefore proposing that under IER an individual’s choice will be carried forward unless and until they inform their registration officer that they wish to make a new choice or they complete a new application to register. We also intend to make it as simple and straightforward as possible for electors to change their preference at any time.

I hope that noble Lords will believe that I have tried to give as positive a response as I can. We are sensitive to the issues which underlie my noble friend’s amendments, but I ask him to withdraw them.

21:44

[Lord Norton of Louth]

My Lords, I am grateful to those who have contributed. However, there was one notable absence in the contribution of my noble friends Lord Tyler and Lord Taylor of Holbeach. That was any reference to principle. I have raised an important principle. Neither of them addressed it, they merely concerned themselves with the practical issues. In response to my noble friend Lord Tyler, the Tories have a good history of at times putting principle above commercial interests dating from the times of Shaftesbury and Disraeli. There is a very important principle involved which has not been addressed.

My noble friend Lord Taylor of Holbeach glossed over the reason why the change was introduced from the sale of the full register to the edited version. It was not the Government suddenly deciding that it was an important issue, it was forced upon them; they were required to do so. I would not be surprised if, in the fullness of time, there are not challenges requiring a move from opt out to opt in.

I tabled the alternative amendments as a way of generating some thought on how to address what I consider to be a very real problem. They were introduced to prompt ideas and not necessarily to foreclose debate, so I have no intention of pursuing them now. However, they need to be reflected upon. The Government need to think much more seriously about the fundamental issue involved in terms of the use of personal data. This is something to which we most certainly will return. For the moment, however, I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

Amendments 56 and 57 not moved.

Clauses 22 to 24 agreed.

Clause 25 : Commencement

Amendments 58 and 59 not moved.

Amendment 60

Moved by

[Baroness Hayter of Kentish Town]

60: Clause 25, page 14, line 19, leave out subsection (3)

[Baroness Hayter of Kentish Town]

My Lords, this amendment would delete subsection (3) which states that:

“An order under subsection (1) may appoint different dates for different purposes (including different days for different parts of the United Kingdom)”;

that is, to commence the Act, as it will become. This gives the Minister considerable power and we would not willingly see that handed over because it will enable a pick-and-mix approach towards when different parts of the Bill come in.

My particular questions concern the provision, I think for the first time, to commence different parts of the Bill in different parts of the United Kingdom. It is slightly hard to understand what the Government have in mind in writing that into the Bill. This is, after all, an all-UK provision, even if votes take place in different parts of the country. This Bill is about a new system of electoral registration and who will be on the register in the future. We would like to know why the Government feel they need a power to bring in just by ministerial order different parts of the Bill in different parts of the United Kingdom. I beg to move.

[Lord Gardiner of Kimble]

My Lords, this amendment seeks to remove a technical part of the Bill—namely, Clause 25(3)—which would mean that the order commencing the provisions in the Bill would not be able to state different dates for different purposes. The subsection in question is a standard provision in legislation and the effect of this amendment would be to prevent the commencement of different parts of the Bill at the most appropriate times.

The Bill is set up to make changes over a two-year transition period. It is drafted with that in mind, and some provisions are specifically drafted to commence at different times. It is presumably not the Opposition’s intention that the planned two-year transition would become a big bang switchover with all the preparation work having to be done at the same time that IER was live.

The amendment would also mean that the much-needed improvements to the administration of elections contained in Part 2 could not be commenced until the provisions under Part 1 relating to IER were ready to be commenced. This would result in either delay in the electoral administration provisions being commenced or the Government being required to commence provisions of the Bill well before they intend to use the powers enabled by them.

The amendment would undermine the entire transition to IER, for example, by not allowing the Government to bring forward an order delaying this year’s canvass until IER was in force, thus defeating the purpose of doing so. It would also mean that electoral administration provisions under the Bill could be commenced only all at once and only alongside the IER provisions. For these reasons, I ask the noble Baroness to withdraw her amendment.

[Baroness Hayter of Kentish Town]

I think the noble Lord did not answer my main question. What is the intention behind allowing it for different parts of the United Kingdom? We are less worried about the staging of the Bill. Why bring it in at different times for different parts of the United Kingdom?

[Lord Gardiner of Kimble]

My Lords, I am not aware in detail of the issue raised by the noble Baroness. I had better write to her about that because there is a point that needs clarification—unless a further message reaches me, which would be extremely timely so that we can tidy this up. My message tells me that this legislation has been designed to be as flexible as possible, and that is why the legislation is drafted such as it is. Perhaps I could consider the matter and come back to the noble Baroness.

[Baroness Hayter of Kentish Town]

That offer is helpful. The bit that worried us was about it being done in different parts of the country at a different time. With the kind offer to write on that detail, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

Clause 25 agreed.

Clause 26 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 9.53 pm.