House of Commons

Monday 4th March 2013 Commons Chamber

Monday 4 March 2013

The House met at half-past Two o’clock

Prayers

Monday 4th March 2013 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Monday 4th March 2013 Commons Chamber

The Secretary of State was asked—

[Mr Nick Gibb (Bognor Regis and Littlehampton) (Con)]

1. What recent steps he has taken to increase the amount of information about schools available to parents and the public.

[The Secretary of State for Education (Michael Gove)]

School performance tables now include four times as much data as those published before May 2010. In addition, since September 2012, schools are required to publish information on their websites on the use and impact of the pupil premium, their curriculum, their admission arrangements and their policies on behaviour, charging and special educational needs.

[Mr Gibb]

My right hon. Friend will know that the new school information regulations came into force on 1 September last year. Among other things, they require schools to publish details of the curriculum for every subject in each year. Looking at a sample of schools’ websites, I do not yet see widespread compliance with this regulation. Given the importance of this information to parents and of parental choice in driving up standards, will he take steps to publicise the new requirement and take measures to ensure compliance?

[Michael Gove]

My hon. Friend is absolutely right to emphasise the importance of ensuring that parents are well informed about schools and the curriculum they offer. The Department sends out termly e-mails reminding schools of their obligations under legislation, and most recently Her Majesty’s chief inspector has written to all schools reminding them of the requirement to publish information and pointing out that inspectors will use the publication of this information as a starting point when considering inspection of provision in the school.

[Phil Wilson (Sedgefield) (Lab)]

Last week, the Secretary of State said of the schools in east Durham:

“When you go into those schools, you can smell the sense of defeatism.”

Will he tell the House which of those schools in east Durham he has actually visited since he became Secretary of State, and will he apologise to the people of east Durham for his outrageous remarks?

[Michael Gove]

I absolutely will not apologise to the people of east Durham for standing up for better education for their children. Perhaps the most telling remarks about the lack of ambition in schools in east Durham were uttered by Lord Adonis. Having visited a school there, he said that a teacher had told him, “In the past children turned right to work in the shipyards or left to work in the coal mines. Now they might as well walk on into the sea.” That spirit of defeatism reported by the noble Lord is exactly what we need to attack. Instead of attacking the Government, the hon. Gentleman would be better off tackling underperformance in his own constituency.

[Dr Thérèse Coffey (Suffolk Coastal) (Con)]

I welcome the publication of the dashboards launched by Ofsted last week and recommend them to the public, parents and governors. Will the Secretary of State go further, though, and explain how we can reconcile some of the Ofsted judgments with the attainment and other progress reports?

[Michael Gove]

The chief inspector is absolutely right to publish these dashboards, but they are only the beginning of how governors and others can hold schools to account for their performance. For example, if we look at the performance of schools under the English baccalaureate measure, we see that there are many schools across the country whose superficial headline GCSE figures flatter to deceive.

[David Wright (Telford) (Lab)]

A number of parents have approached me with concerns about children who are particularly high achievers, whom they feel are sometimes not given the support they require in the classroom. Will the Secretary of State outline how he will ensure that schools provide more information to those parents in order to encourage people to achieve more broadly and ensure that high achievers with particular talents can flourish in our schools?

[Michael Gove]

That is a very good question. We have introduced new papers in primary schools allowing children at the end of key stage 2—the end of their primary curriculum—to aspire to do even better by reaching a level 6, which is a higher level of achievement than was previously available to them, while the changes we hope to make to GCSEs will, I hope, drive a higher level of attainment as well. Furthermore, we have said to all state schools that they have an opportunity to visit for free a Russell group university on behalf of their students in order to aspire to do better. There is much more that we can do, however, and I look forward to working with the hon. Gentleman to do it.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

2. What steps he is taking to ensure that schools are able to shape the curriculum to their own pupils’ aspirations and priorities.

[The Parliamentary Under-Secretary of State for Education (Elizabeth Truss)]

My right hon. Friend the Secretary of State for Education recently announced our proposals to reform the new national curriculum. In addition to being more rigorous in the core subjects, the new national curriculum will also be much slimmer, meaning that schools will have greater freedom to design lessons that inspire and motivate all their pupils.

[Stephen Metcalfe]

Will the Minister join me in encouraging schools to deliver a curriculum that not only meets the aspirations and priorities of pupils but reflects the needs of local employers—core skills such as maths and English as well as vigorous vocational qualifications in engineering, computer science and technology?

[Elizabeth Truss]

There is much more scope in the new national curriculum for schools to develop programmes involving design, technology and computing to prepare students for high-tech roles, as well as improving their maths and English core skills. The computing curriculum now focuses on programming and understanding how computers work, and has been developed with the British Computer Society. We are also introducing a new technical baccalaureate that will provide a high level of technical training, including maths for students up to the age of 18.

[Clive Efford (Eltham) (Lab)]

Flexibility for schools is welcome, but what is the minimum time parents should expect their children to spend on sport and physical activity under the new national curriculum?

[Elizabeth Truss]

We are ensuring that physical education is a core part of the curriculum for children aged up to 16, and we have introduced new topics to the subject.

[Mr Graham Stuart (Beverley and Holderness) (Con)]

I am worried about the curriculum for children who are currently being flexi-schooled. The Government recently announced—without consultation and without notice—the abolition of flexi-schooling, which has existed for decades and which meets the needs of many children. How will the Minister ensure that the needs of those children are met in the immediate future?

[Elizabeth Truss]

We will ensure that our attendance procedures are absolutely correct, so that we know whether students are at school or not. If they are being home-schooled, that is a decision for their parents; if they are at school, they must be properly at school, and their attendance records must be properly monitored.

[Kevin Brennan (Cardiff West) (Lab)]

May I take this opportunity, on behalf of Her Majesty’s Opposition, to wish Her Majesty a speedy recovery?

The Minister is actually making the curriculum less flexible. For instance, she is insisting that primary school children will have to study Dafydd ap Gruffydd. Can she tell us about Dafydd ap Gruffydd, and can she spell Dafydd ap Gruffydd?

[Elizabeth Truss]

The hon. Gentleman is absolutely right, in that we are ensuring that students gain a good chronological understanding of history throughout their school career. During my own school career, I spent one lesson studying Sir Francis Drake and the next talking about the princes in the tower. I would certainly have preferred a school career that enabled me to learn about chronology and understand our island story.

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

3. What steps he is taking to improve outcomes for adopted children in (a) Enfield North constituency, (b) London and (c) England.

[The Parliamentary Under-Secretary of State for Education (Mr Edward Timpson)]

Adoptive families can struggle to get the help that they need, and I am determined to change that. We have already announced measures that give adopted children rights to priority schools admission and free early education, and we are introducing an “adoption passport” so that adoptive families know about their entitlements. Further measures in the Children and Families Bill are aimed at tackling delay and improving outcomes for adopted children, including children in Enfield North.

[Nick de Bois]

Is the Minister aware that the children of adoptive adults who have died without locating their biological families are often left in a quandary, as they are unable to gain access to vital information about their parents’ families, including information about hereditary medical conditions? What steps will he take to rectify that? Will he agree to meet me to discuss this important matter, in which the British Association for Adoption and Fostering is taking an interest?

[Mr Timpson]

My hon. Friend is right to raise what is indeed an extremely serious and important matter. We must think carefully about the information that adopted people have to find out about their parents’ families, particularly when there may be hereditary medical problems. I know that the matter was referred to the Law Commission in 2010, but we must do more work to establish how we can ensure that more information can be provided when it is needed. I should be happy to meet my hon. Friend and discuss the matter in more detail.

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

Given that adoption is sadly never likely to be the solution for all looked-after children, may I ask the Minister what measures he is introducing to ensure that children in foster care or residential care homes also manage to bridge the attainment gap?

[Mr Timpson]

The hon. Gentleman is right: we need to consider all routes of permanency for children who go into the care system. There is no inbuilt hierarchy, although we know that adoption is a very successful route for many—we think more—children. Through the Children and Families Bill, we are trying to improve the educational attainment of children in care by introducing a statutory duty for local authorities to appoint a virtual school head, whose remit is specifically to try to improve the educational attainment of children in the care of local authorities so that the outcomes are better and they have the prospect of a fulfilling adult life.

[Mr Julian Brazier (Canterbury) (Con)]

Having visited on Friday a remarkable lady who both is an adoptive mother and advises Kent county council’s adoption panel, may I say that the measures the Minister has announced over the past year are extremely welcome but that the overriding need is to speed up the court processes, which are still much to slow?

[Mr Timpson]

My hon. Friend is absolutely right. That is why, under the Children and Families Bill and the work we are doing with the Family Justice Board, we are trying to drive every element of unnecessary delay out of the court process and are bringing in a 52-week maximum limit on the time a care case should take to ensure that, where there is an opportunity for a child’s adoption placement to be made permanent, that happens sooner rather than later and they can get on with their life and form those all-important attachments with their new family.

[Lorely Burt (Solihull) (LD)]

4. What steps he is taking to ensure that the funding formula for school sixth forms and sixth-form colleges is fair and equitable.

[The Parliamentary Under-Secretary of State for Skills (Matthew Hancock)]

In 2010 we committed to ending the historical disparity in post-16 funding so that by 2015 schools and colleges will be funded at the same level as one another for the first time, on a per-pupil basis. Transitional protection will apply for four years from 2011 to give institutions time to adjust.

[Lorely Burt]

I am grateful to the Minister for that answer and to the Secretary of State for his correspondence. In Solihull and elsewhere, differences in funding for sixth-form colleges and state schools are putting sixth-form colleges under great competitive pressure. Will the Minister assure Solihull sixth-form college, and all sixth-form colleges, that he will introduce remedies as quickly as possible?

[Matthew Hancock]

I am a strong supporter of sixth-form colleges, which do excellent work, including Solihull sixth-form college. I congratulate the newly formed all-party parliamentary group on sixth-form colleges. I regularly meet the ministerial working group on post-16 funding to discuss the implementation of the fair per-pupil funding system, and I will bear my hon. Friend’s comments in mind.

[Nic Dakin (Scunthorpe) (Lab)]

I thank the Minister for attending the all-party group’s reception last week. I think that he recognised at the meeting that sixth-form colleges, in particular, face a challenging funding situation because their learners are funded significantly less than those pre-16 or in higher education. Will he commit to addressing that issue as soon as possible?

[Matthew Hancock]

Of course funding is tight, and it is important that we get it to the right place. The starting point is ensuring that, as far as possible, students doing the same sorts of courses are funded the same across different institutions and that, just as we do before the age of 16, someone in full-time education is funded by broadly the same amount as anyone else in full-time education.

[Sir Gerald Howarth (Aldershot) (Con)]

As a vice-chairman of the newly formed all-party group, and as the Member who represents the finest sixth-form college in the country, Farnborough sixth-form college, which my right hon. Friend the Secretary of State knows only too well, I welcome the Government’s commitment to ending the disparity. However, I have just been on the phone to the principal of the college, who tells me that even now it is looking at being between 9% and 15% less well funded than its counterparts in mainstream education. I would be grateful if my hon. Friend expedited his proposed changes.

[Matthew Hancock]

The changes will be brought in by 2015. We have put in place transitional arrangements to ensure that institutions have time to adjust. Especially in sixth-form colleges such as Farnborough, which has an excellent track record—it is truly inspirational—it is important that we move to per-pupil funding in a considered way.

[Kelvin Hopkins (Luton North) (Lab)]

Sixteen to 18-year-olds from disadvantaged backgrounds studying at further education sixth-form colleges do not receive free meals at lunchtime, whereas their counterparts in school sixth forms do. Is not that another injustice that needs to be addressed?

[Matthew Hancock]

Schools do not receive any extra funding for provision of that duty, so when looking at that question we need to be extremely careful not to add new duties without extra funding to go with it.

[John Pugh (Southport) (LD)]

5. What recent assessment he has made of the use of phonics in schools.

[The Parliamentary Under-Secretary of State for Education (Elizabeth Truss)]

The phonics screening check confirms whether year 1 pupils can decode using phonics to an appropriate standard. In 2012, the first year of the national roll-out, 58% of children met the expected standard. We have commissioned an independent evaluation of the check over a period of three years, which will examine the impact of the check on phonics teaching.

[John Pugh]

I thank the Minister for that response, but many experienced, skilled and successful teachers of reading are a bit concerned about an over-reliance on phonics. What can she do to persuade them that the Government are not being a little doctrinaire in this area?

[Elizabeth Truss]

I thank my hon. Friend for his question. A large body of research evidence shows that phonics is the most effective way of teaching literacy to all children. Last year’s phonics check identified 235,000 children who will now receive extra help, which is very important because PIRLS—the progress in international reading literacy study—showed that this country has one of the largest gaps between the strongest and weakest performers in reading. It is really important that we identify children who are struggling with reading early, so that they can receive help as soon as possible.

[Kerry McCarthy (Bristol East) (Lab)]

6. What steps he is taking to ensure that no children with disabilities or additional needs are illegally excluded from school.

[The Parliamentary Under-Secretary of State for Education (Mr Edward Timpson)]

We have issued new statutory guidance setting out schools’ responsibilities on exclusion, making it clear that discrimination against disabled pupils is unlawful and emphasising the importance of stepping in early to address the underlying causes of disruptive behaviour. Early identification and intervention also underpin the Government’s planned reforms to the special educational needs system and a new approach to exclusion that the Government are trialling in a number of local authority areas.

[Kerry McCarthy]

I thank the Minister for that response, and he will be aware of Contact a Family’s survey of more than 400 families of children with disabilities and additional needs. It found that 22% of these children are illegally excluded at least once a week and 15% are illegally excluded every day for part of the day, with the most common reasons given being that there were not enough support staff to help or that the child had what the teacher described as “a bad day”. There are no sanctions against schools that carry out these exclusions and Ofsted does not take them into account in its reports, so what can be done to ensure that schools abide by the guidelines?

[Mr Timpson]

I am aware of the Contact a Family report, which was completely right to emphasise that schools should act lawfully and follow the correct procedures. Ofsted has an important role to play in this regard and, with the new criteria on behaviour and leadership, it will look carefully at where illegal exclusions are taking place, will take them seriously and will take them into account when making its overall judgment on a school’s performance. Our trials in 11 local authorities will give a greater incentive for schools to think carefully about what happens after they exclude a pupil and they will have to take greater responsibility.

[Dan Rogerson (North Cornwall) (LD)]

I am grateful to the Minister for setting out how those trials are proceeding. Has he any information to share with the House on how the new process for dealing with exclusions is following on from the Education Act 2011?

[Mr Timpson]

My hon. Friend will have heard me refer to the new statutory guidance, which we issued last September, and the new code of practice will strengthen the arrangements for dealing with children with SEN to make sure that there is a clear focus on ensuring that no illegal exclusions take place in future. I am happy to discuss that with him if he wishes to do so.

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

What sanctions or actions is the Minister willing to take against schools that are illegally excluding pupils?

[Mr Timpson]

I have already set out Ofsted’s role in this area and, clearly, we take any judgment of inadequacy that it makes extremely seriously. As a Minister in the Department, the Secretary of State has powers of intervention that we can use, if necessary, where we feel that a school is failing to provide a fair and adequate level of education; clearly, the factor of illegal exclusions will have to be taken into account.

[Mrs Linda Riordan (Halifax) (Lab/Co-op)]

8. What plans he has for school improvements; and if he will make a statement.

[The Minister for Schools (Mr David Laws)]

We are determined to drive up standards in all schools. We are doing that by providing significant additional funding for disadvantaged pupils, through the pupil premium. In addition, Ofsted has implemented a more rigorous inspection framework. For the lowest-performing schools, we will look to secure a sponsored academy solution, with a high-quality sponsor.

[Mrs Riordan]

Moorside community primary school in Halifax is driving up standards, but it has been waiting for investment in a new school building for far too long. Promises have been made, but there is still no new building. When will the school get that new building, to ensure that another generation of pupils does not miss out?

[Mr Laws]

The hon. Lady will know that when the Government came to power we inherited from the previous Government a complete mess, through the Building Schools for the Future programme. It was over-extended, inefficient and unaffordable. We have now put in place an affordable school building project that is consistent with the finances this nation can afford.

[Mr Philip Hollobone (Kettering) (Con)]

One of the best ways of improving schools is by getting former armed forces personnel into teaching roles. What progress are Her Majesty’s Government making in turning troops into teachers?

[Mr Laws]

My hon. Friend is quite right that we are pioneering that initiative. We believe that many people who were previously in the armed forces can make a major contribution to learning and we will continue to take forward that project.

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

9. What assessment he has made of the potential effect of his Department’s traineeships scheme on young people’s readiness for work and apprenticeships.

[The Parliamentary Under-Secretary of State for Skills (Matthew Hancock)]

Last week, data showed the lowest number in a decade of people aged 16 to 19 who were not in employment, education or training. One NEET is too many, so traineeships will help young people gain the skills, attitudes and experience they need to get into an apprenticeship or a good job. They will combine substantial work placements and work skills training with English and maths and will help tackle the scourge of youth unemployment.

[Rehman Chishti]

I thank the Minister for that answer. In Medway, the council-led SUCCES—or sustainable uplifting client centred employment support—initiative, which assists over-16s looking for work who have low skills and little experience, has been named as an example of best practice in Europe, helping more than 500 people. What plans does the Minister have to work with existing schemes and providers to deliver new traineeships?

[Matthew Hancock]

I congratulate Medway council on its SUCCES initiative. Traineeships are being designed in a highly consultative way to support and enhance existing best practice not only from councils but from organisations such as the Prince’s Trust, which does brilliant work in this area. I am happy to look at the work that goes on in Medway and to ensure that what we do on traineeships supports it.

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

How will the Minister ensure that more apprenticeships go to younger people, as we know that the figures from last year showed that 9,000 fewer under-19s had gone into apprenticeships?

[Matthew Hancock]

Of course, apprenticeships have been a huge success story and the number of 19 to 24-year-olds involved is rising sharply. We must ensure, too, that apprenticeships are rigorous and high quality, so we have taken steps to do that. I hope that the hon. Lady will join me next week, which is apprenticeships week, in celebrating apprenticeships. Every Member of this House has the opportunity to explain to everybody that apprenticeships are good for the apprentices, good for business and good for society as a whole.

[Robert Halfon (Harlow) (Con)]

23. Will my hon. Friend support the roll-out of the scheme initiated by the Department for Work and Pensions, which ensures that companies offering procurement contracts must hire apprentices? Will he ensure that the scheme, which has resulted in thousands more apprentices in the DWP, is rolled out across Government Departments?

[Matthew Hancock]

I know the scheme well and it is both simple and effective. It also takes value for money into account. I was talking to a permanent secretary about it only this morning and I shall be doing far more of that.

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

I welcome investment in pre-apprenticeship training and preparation, but is the Minister not concerned about the accelerating decline in the number of apprenticeships available to 16 to 18-year-olds, which is down 7% from last year’s figure alone, and that the funding providers found a shortfall of £61 million in expenditure on that group last year? It is right and proper to invest in pre-apprenticeship training, but does he not agree that the bigger crisis is in whether those young people will have an apprenticeship to go on to?

[Matthew Hancock]

The crisis would be if we did not improve the quality of apprenticeships, because they are vital in getting people into good jobs and ensuring that there is training in jobs. We took out some low-quality provision, which inevitably had an impact on the numbers, but that is a vital part of ensuring that apprentices are seen to be high quality and are regarded as such and that they are an attractive option for young people, adults and employers.

[Robert Flello (Stoke-on-Trent South) (Lab)]

10. What plans he has for early intervention and child care provision; and if he will make a statement.

[The Parliamentary Under-Secretary of State for Education (Elizabeth Truss)]

The affordability and availability of child care are a concern for many working parents, yet staff wages are often too low to support high-quality provision. “More great childcare” outlined reforms to improve quality and availability. We will introduce rigorous new inspection, new qualifications for early years teachers and new flexibilities to enable providers to deliver what is best for children. Childminder agencies will reverse the decline in the numbers of childminders.

[Robert Flello]

Stoke-on-Trent has been hit harder than almost any other local authority in the country, including by a massive hit to early intervention funding—despite it being one of the most deprived areas facing the greatest need. If the Minister expects her claim to want to improve the quality of child care to be taken seriously, perhaps she will tell us what arguments she has had with Ministers in her own Department and indeed in the Department for Communities and Local Government to tackle these pernicious cuts?

[Elizabeth Truss]

Overall, we have increased early intervention funding from £2.2 billion to £2.5 billion. We are also introducing a new scheme for low-income two-year-olds, starting this September and the following September, which will make sure that those two-year-olds access high-quality provision from good and outstanding providers. Let us face the fact, however, that over 13 years of Labour government what we ended up with was the most unaffordable child care in Europe as well as the lowest salaries with staff paid only £6.60 an hour.

[Caroline Dinenage (Gosport) (Con)]

As the Minister said, child care workers in England are paid barely more than the minimum wage. Does she agree that the present rigid staff-child ratios place a cap on wages and therefore on the quality of staff?

[Elizabeth Truss]

I completely agree with what my hon. Friend has just said. Let us make it clear that we will allow more flexibility in ratios only for high-quality providers where high-quality staff are being hired. The aim, as advocated by the shadow Secretary of State, is to move to systems such as those of Sweden and Denmark, which have high-quality providers, high-quality staff and more flexibility and professional judgment operated at a local level. Everyone, from Andreas Schleicher of the OECD to Sir Michael Wilshaw, backs that plan to raise quality.

[Bill Esterson (Sefton Central) (Lab)]

20. In welcoming the move to a better qualified child care work force, I raise the case of Becky, who has dyslexia and will struggle to achieve the necessary GCSEs for working in child care. Does the Minister accept that for people such as Becky there needs to be a balance between academic and vocational child care qualifications, which means that qualifications should be focused on identifying the people who are best at working with children, not just on those who can pass exams?

[Elizabeth Truss]

I thank the hon. Gentleman for his question, but all the international evidence from EPPE— the Effective Provision of Pre-School Education—to the OECD “Starting Strong” survey indicates a strong relationship between the qualifications people have, the quality of the child care provision and the outcomes for the children. I think there should be some flexibility in the system, however, so we can get high-quality people and improve vocational training and apprenticeships. I suggest that the hon. Gentleman respond to the consultation on precisely the point he raised.

[Harriett Baldwin (West Worcestershire) (Con)]

Many people, including the shadow Education Secretary, have praised the Scandinavian approach to child care. Will the Minister confirm that in Sweden and Denmark there is no mandatory national child care ratio at all?

[Elizabeth Truss]

My hon. Friend is absolutely right that there are no national ratios. Indeed, in parts of Sweden, no ratios at all are set for some nurseries. What the Swedes do is to rely on high-quality professionals exercising their professional judgment in the particular setting. That is the system we want to move to here. It is backed by the OECD and by Sir Michael Wilshaw of Ofsted, so I suggest the Opposition back it as well.

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

I am sorry to say that I truly believe that the Minister and the Secretary of State sat before us today are the most out of touch in the whole of Whitehall—apart from those in Downing street, that is. They pursue policies such as increasing child care ratios that generate almost unanimous opposition from across the country, to which they refuse to listen while systematically undermining popular services such as Sure Start by slashing the budget by almost half. When will they start listening to the people whom they are supposed to serve and put the best interests of children and families—rather than dogma and pet policies—at the forefront of their policy?

[Elizabeth Truss]

I have already pointed out that there is strong evidence for our reforms, and I point out to the hon. Lady that fewer than 1% of Sure Start centres have closed. They provide about 4% of full-time child care places. I would be interested to hear what the hon. Lady’s policies are for the other 96% of child care places and how she plans to make them more affordable. Under her watch, fewer women or mothers went out to work, and we were overtaken by countries such as France and Germany. What is her solution to that?

[Andrew Selous (South West Bedfordshire) (Con)]

11. What steps he is taking to ensure that careers advice is available to pupils choosing AS levels.

[The Parliamentary Under-Secretary of State for Skills (Matthew Hancock)]

Schools have a legal responsibility to secure independent and impartial careers guidance in years 9 to 11, and in years 8 to 13 from this September. This requirement will be extended to those up to the age of 18 in colleges. This will help those taking AS-levels to make successful transitions.

[Andrew Selous]

My very excellent Friend the Member for Mid Worcestershire (Peter Luff) has quite properly highlighted the scandal that this country produces only 19,000 graduate engineers a year when we need 41,000 graduate engineers. Unless children take maths and ideally physics at AS-level we are not going to bridge that gap, so will the Minister make it clear to schools that when children make these vital choices, they are told that graduate engineers are being snapped up, the country needs them, and a graduate engineer creates 12 extra jobs in the economy?

[Matthew Hancock]

I can think of few better people to make that argument than my hon. Friend or my hon. Friend the Member for Mid Worcestershire (Peter Luff), with whom I am meeting Professor Perkins, the chief scientific adviser, later today. This is a huge and important area. The lack of engineering skills in this economy is a serious problem, the product in part of 13 years of failure to address the problem. We are working four-square towards that, and we will not rest until it is sorted out.

[Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)]

Is not the problem with that answer that the Government are proposing to downgrade AS-levels? Good advice is vital if we are to widen participation in higher education. Cambridge university’s response to the Government’s proposals on AS-levels is that they are

“unnecessary and, if implemented, will jeopardise over a decade’s progress towards fairer access.”

Will the Government think again?

[Matthew Hancock]

We are upgrading AS-levels to ensure that we get the best possible and most rigorous education. The Opposition say they are in favour of rigorous education, then they oppose every measure meant to achieve it.

[Stephen Twigg]

We absolutely oppose what the Government are proposing on AS-levels, as do the vast majority of people in the education system, including Cambridge university and the other Russell group universities. Which universities support the Government’s proposals on AS-levels?

[Matthew Hancock]

Seventy-five per cent. of universities do not use AS-levels. What is crucial, therefore, is not only that we work with universities to reform A-levels, but most importantly that we have broadly a rigorous exam system that universities and employers trust. Not only do we in this country have youth unemployment that has been rising since 2004 and became much too high, but worse than that, we have skills shortages at the same time. That means that we need to reform radically the education and skills system that we were left.

[Andrew Stephenson (Pendle) (Con)]

12. How many schools have become academies since May 2010.

[The Secretary of State for Education (Michael Gove)]

Since May 2010, 2,470 new academies have opened.

[Andrew Stephenson]

My right hon. Friend will be aware that one of those schools is Colne Primet high school in my constituency, which converted to academy status as part of a multi-academy trust, the Pendle education trust, on 1 January this year. It has recently submitted an excellent bid for capital funding through the Education Funding Agency to carry out much-needed improvements to its school building. Will my right hon. Friend let me know how I can draw this excellent bid to his attention and that of the rest of the team?

[Michael Gove]

My hon. Friend has just done so, with characteristic acuity and passion.

[Helen Goodman (Bishop Auckland) (Lab)]

14. What his policy is on the secondary school curriculum.

[The Secretary of State for Education (Michael Gove)]

We recently published a number of proposals for the reform of the national curriculum in primary and secondary schools and those proposals are now subject to public consultation.

[Helen Goodman]

We know from industry that computing science is extremely important, and particularly coding skills. However, two thirds of schoolteachers do not have the relevant skills to teach coding. What does the Secretary of State intend to do about that?

[Michael Gove]

That is a very good question from the hon. Lady. One of the things that we have done is disapply the existing information and communications technology curriculum that we inherited from the previous Government, which was not appropriate, was out of date and ensured that students did not acquire the skills they need. We now have a new curriculum and we are working with industry, including Microsoft, in order to ensure that that new curriculum teaches children the coding skills required. I had the opportunity on Friday to see a school in my own constituency doing just that.

[Justin Tomlinson (North Swindon) (Con)]

As chair of the all-party parliamentary group on financial education for young people, I welcome the proposed inclusion of financial education in the maths and citizenship curricula. What more needs to be done during the consultation period to make sure that we deliver on our duty to equip the next generation of consumers to make informed and savvy financial decisions?

[Michael Gove]

I pay tribute to my hon. Friend for the tenacity and skill with which he has fought his campaign. It is important that all of us recognise that we need to equip children with both the mathematical skills and the strength of character to be able to navigate choppy financial waters.

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

I welcome the Secretary of State’s decision to include financial education, but what about relationship and sex education? Should they not be part of personal, social, health and economic education, as a statutory part of the curriculum, especially in light of the allegations around Jimmy Savile and Cyril Smith, to ensure that young people know how to deal with sexual predators?

[Michael Gove]

Sex education is a statutory part of the national curriculum. The broader point about the nature of sexual exploitation is most effectively dealt with by ensuring that we can prosecute those people who are responsible for despicable crimes.

[Margot James (Stourbridge) (Con)]

My right hon. Friend will be aware of “Informed Choices”, which was published by the Russell group of universities and deals with subject selection at GCSE and A-level. Does he agree that all young people, not just those designated as gifted and talented, should be made aware of the implications of subject choices at GCSE so as to maximise their opportunity to attend such universities?

[Michael Gove]

My hon. Friend makes a characteristically good point. It is absolutely right that we do not prematurely curtail young people’s freedom of choice. In order to do that, we need to make it clear to them which subjects give them the widest choice later in life, and those are English, mathematics, the sciences, a modern or ancient foreign language, history and geography.

[John Howell (Henley) (Con)]

16. What steps he plans to take to ensure that children with special educational needs receive a joined-up service across agencies.

[The Parliamentary Under-Secretary of State for Education (Mr Edward Timpson)]

Children and young people’s needs will drive local commissioning arrangements to deliver joined-up services. The Children and Families Bill will require local authorities and clinical commissioning groups to commission jointly the education, health and care provision needed for children with SEN.

[John Howell]

What action is my hon. Friend taking to ensure that one of those agencies, the health service, can contribute fully to the provision of services for children and young people with special educational needs?

[Mr Timpson]

My hon. Friend highlights an important aspect of the reforms in which many parents are eager to see significant progress. Over and above the new joint commissioning and duty to co-operate, there will be clear and binding duties on clinical commissioning groups to ensure that services meet the reasonable requirements of people for whom they are responsible. The NHS mandate specifically references children with SEN, and we continue to have discussions with the Department of Health. I hope to make further progress in this area.

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

The Minister is aware of my concern about the gap between the ages of 16 and 18 where children with learning difficulties and special educational needs find that they have only three days a week rather than five. Is there any chance that the new regulations will lay down that such hours will be delivered over at least four days a week?

[Mr Timpson]

My hon. Friend has studiously raised this matter on every occasion that we have debated special educational needs in the House during the last four or five months, and I am acutely aware of the issue that he raises, which is relevant to his constituency. He had the opportunity to meet my officials in order to understand better how our reforms will affect the issue that he raises, and I am happy further to discuss that with him as the Bill now moves into Committee. Our overall objective is to improve outcomes for all children with special educational needs, and clearly making sure that they have quality support and provision is at the heart of those reforms.

[Several hon. Members]

rose—

[Mr Speaker]

Order. Having myself known the hon. Member for New Forest East (Dr Lewis) for three decades this year, I can testify that he is indeed a persistent woodpecker.

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

17. What recent progress he has made on the Priority School Building programme.

[The Minister for Schools (Mr David Laws)]

We are taking forward the delivery of schools being funded using capital grant. We have appointed contractors to build the first two groups of schools, and construction work is expected to start in May. We are also working with the schools that we believe will form the first three privately financed groups of schools.

[Bridget Phillipson]

The Minister is aware of the case of Hetton school in my constituency; it has been affected by delays to the PFI element of the programme. Parts of the school have been closed due to asbestos, there are falling drainpipes and the heating system is failing. Will the Minister resolve the funding issues as a matter of urgency? The situation facing teachers and pupils simply cannot be allowed to continue.

[Mr Laws]

I am aware of the hon. Lady’s interest in this issue; she has written to my right hon. Friend the Secretary of State about it on a couple of occasions. From the letter that she has already received back, she will be aware of some of the issues arising in getting the batch ready for private finance. I have seen the most recent letter that she sent to the Secretary of State and I would be happy to meet her to discuss the practicalities of these issues further.

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

18. What progress he has made on implementation of the recommendations of the Munro review of social work.

[The Secretary of State for Education (Michael Gove)]

We are making a number of changes to the child protection system. “Working Together to Safeguard Children”, the guidance that provides support and advice to those who look after children potentially subject to abuse, risk or neglect, will be republished shortly in a tighter and more focused way.

[Meg Munn]

We are two years on from the original work, whose aim was to reduce the amount of bureaucracy and the time that social workers were spending on form filling. Many social workers are reporting that the situation has not changed at all and that they are still in a system that does not give them sufficient time to work directly with children. Where have things gone wrong and what is the Secretary of State going to do about it?

[Michael Gove]

The hon. Lady is right to emphasise how difficult life is for many social workers at the front line. Part of the problem rests with the complicated process that we inherited, which the revision of “Working Together” attempts to address. The space or gap between the initial and subsequent assessments that children at risk of abuse or neglect have to face is one of the changes addressed through the Munro recommendations. However, we also need to change how local safeguarding children boards operate and to make sure that the capacity of the social work profession to cope with the challenges thrown at it is greater. That is being addressed through the College of Social Work and the additional support that we hope to give through the launch of the Frontline programme.

[Fiona Mactaggart]

T2. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Education (Michael Gove)]

On Friday, I was absolutely delighted to publish details of the allocation of money that we are giving to local authorities to help them meet the need for additional pupil places, including in local authority areas such as Slough.

[Fiona Mactaggart]

I am glad of the money for extra places, because we need them.

I want to ask the Secretary of State about his permanent secretary’s response at a Public Accounts Committee hearing last week. The permanent secretary said that everything that the Department for Education does is early intervention. Yet the National Audit Office report reveals that 40% of newly sentenced prisoners had been permanently excluded from school. What is the Department doing to prevent the failure in attainment among those 40%?

[Michael Gove]

The hon. Lady is absolutely right to draw attention to the fact that there is an iron-clad link between under-achievement at school and the likelihood of someone’s becoming known to the criminal justice system.

The most important thing that we can do is address the particular problem that so many young men have in learning to read properly and in acquiring the qualifications that will give them good jobs. The changes we are making to the national curriculum, to Ofsted and in particular to how literacy is assessed at the end of primary school and through GCSE are all intended to ensure that young men do not continue to be failed.

[Stuart Andrew (Pudsey) (Con)]

T3. I commend my right hon. and hon. Friends at the Department for Education on the Children and Families Bill, not least because it brings about welcome reforms to the special educational needs system. It is clear that pathfinders will have an extremely important role in informing the legislation and the new code of practice. What progress are pathfinders making in that area?

[The Parliamentary Under-Secretary of State for Education (Mr Edward Timpson)]

My hon. Friend is right to point out that the issue is not just about the legislation, but about how the reforms will be implemented on the ground. That is where the pathfinders are so crucial.

A progress report—an independent evaluation of how pathfinders are developing—will be published tomorrow. There has been good progress in the local offer and its development, in the engagement of parents and in the transition into adulthood, as well as in personal budgets and in the continued assessment process becoming more co-ordinated. Of course, pathfinders will continue to inform our legislation and the code of practice and regulation that will follow once we move into the consultation part of the process.

[Lisa Nandy (Wigan) (Lab)]

I want more people from all walks of life to come forward to adopt children, and when they do I want them to be welcomed with open arms and given all the help and support they need. Does the Minister share his predecessor’s view and recognise his Department’s own guidance, which states that adopted children may well need their own bedroom when they join a new family? If so, will he promise them and this House that no prospective adoptive parent will be refused permission to give a child a loving home because of the bedroom tax?

[Mr Timpson]

I know that the hon. Lady has taken an extremely keen interest in this very important issue. Of course we need more people to come forward to adopt, because we have a huge shortfall, and that is a national crisis that we need to address. That is exactly what we are doing through our Children and Families Bill reforms, which will help to drive up the interest and confidence of the many people who want to adopt and enable them to do so. One of the reasons we need to do that is that more children require adoption as their best route into permanency. We need to ensure that the people who come forward have the requisite skills and capability to provide a loving home. I am sure that as we move into Committee and hear evidence tomorrow on the adoption reforms we will enjoy discussing this issue further.

[Andrew Selous (South West Bedfordshire) (Con)]

T7. In addition to improving children’s education across the country, the other great commission that Ministers in the Department are charged with is to strengthen family life. The Department runs some great programmes such as “Let’s Stick Together” and “Parents as Partners”, but given the scale of the challenge what more can be done to strengthen family life in this country? Will the Secretary of State meet me to discuss this important issue?

[Michael Gove]

I would be delighted to meet my hon. Friend, who has a formidable record in campaigning to support family life. It is a massive challenge. No single set of Government interventions will help to sustain family life, but it is important that we do what we can. I look forward to working with him to ensure that we can support people who stay together and who demonstrate love and support for the next generation.

[Paul Blomfield (Sheffield Central) (Lab)]

T4. The Government have cut Sheffield’s early intervention grant by 27%, or £6.8 million, forcing the council to make deep cuts to early years provision. Last week the Secretary of State was invited to present evidence to the council’s children, young people and family support scrutiny committee. As he missed that opportunity, will he now tell the House what he would say to some of the most vulnerable families in our city whose child care is threatened as a result of his decision?

[Michael Gove]

I am reliably informed by the Department that in this financial year £25.2 million has been allocated to Sheffield in the early intervention grant. [Interruption.] It is a 3.9% increase on last year.

[Mel Stride (Central Devon) (Con)]

T8. I congratulate my right hon. Friend on his progress with free schools, but may I urge him to go further and faster in opening up free school provision by bringing in profit-making enterprises paid by results and focused on the parts of the country where educational achievement is weakest and where free school take-up is scarce?

[Michael Gove]

My hon. Friend is right. Free schools are making a significant difference in driving up standards in every part of the country from Merseyside to the Mendips. I am absolutely committed to making sure that everyone who is committed philanthropically to supporting state education is given the chance to do so.

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

T5. When I give the awards at Longley Park sixth-form college on 21 March, I shall pass on the enthusiasm of the Under-Secretary of State for Skills for sixth-form colleges. The college teaches maths and English to 16 to 19-year-olds, and through its teaching enrichment programme, which continues at over 600 hours per year, it has increased access in a way not seen in generations. Is it not strange, therefore, that £740 per student is going to be cut from its budget by 2016?

[The Parliamentary Under-Secretary of State for Skills (Matthew Hancock)]

As we discussed earlier in questions, it is vital and fair that we move to a system where all pupils up to the age of 19, except those with specific needs or those studying particularly expensive subjects to teach, are funded on the same basis. Whether someone attends a further education college, a sixth-form college or a school of any description, we must have fair funding per pupil. That is what we do from the ages of five to 16, and raising the participation age to 19 is an entirely fair way to run the system.

[Sheryll Murray (South East Cornwall) (Con)]

T9. I welcome the Government’s move to introduce the pupil premium, which has helped schools in South East Cornwall, but more can be done. What further action is the Minister taking to assist the 40 education authorities, including Cornwall, that are listed by the f40 campaign as receiving the lowest income?

[The Minister for Schools (Mr David Laws)]

My hon. Friend is right that the introduction of the pupil premium has been very important across the country, and we will announce a further increase in its level for 2014-15. She should be reassured to know that, after we have completed the roll-out of the pupil premium, we intend to move to a fairer national funding formula, which will help many of those areas of the country that have been underfunded, unfairly and illegitimately, for many decades.

[Helen Goodman (Bishop Auckland) (Lab)]

T6. The Government claim to be promoting family life, but the truth is that the bedroom tax will penalise non-resident parents who keep a room so that their children can stay with them on a regular basis. What representations have Ministers in this Department made to the Department for Work and Pensions?

[Michael Gove]

I do not know why the hon. Lady and, indeed, all Opposition Members keep referring to this as a bedroom tax. It is not a tax. It is timely and necessary action to deal with our out-of-control welfare bills, and that action is needed because of the way in which our economy was driven into the ground by the Labour party. It was in power for 13 years, during which no effective welfare reform took place and during which money was spent on a series of vanity projects that only left the country saying, “Thank heavens that a coalition Government have two parties clearing up the mess left behind by that crew of socialist wreckers on whom we wish nothing but a rapid path to contrition.”

[Gordon Birtwistle (Burnley) (LD)]

Over the past 15 years, professional, face-to-face careers advice has virtually vanished from our schools. Could the Minister advise us when it will return?

[Matthew Hancock]

Yes. The new duty for independent and impartial careers advice came into place in September, and this summer Ofsted will do a thematic review to assess how well schools are implementing it, where it is being done excellently and where it is not yet being implemented correctly. I look forward to receiving that review.

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

T10. The Daycare Trust has warned that it will be children from low-income families in particular who will lose out as a result of Government changes to child care ratios. Will the Minister listen to the concerns of parents, child care staff and experts, and think again on the proposals?

[The Parliamentary Under-Secretary of State for Education (Elizabeth Truss)]

Child care ratios will be flexible only where providers are of high quality and hiring high-quality staff. This proposal is designed to drive up quality in the child care sector, is supported by Sir Michael Wilshaw of Ofsted and Andreas Schleicher of the OECD, and is best practice in most European countries. Ratios for two-year-olds are higher in virtually every other country in Europe, including Scotland and Ireland. I advise the hon. Lady to look at what goes on abroad and see high-quality child care with well-paid staff.

[Peter Luff (Mid Worcestershire) (Con)]

We all want young people to be able to cook, but the design and technology curriculum on which my right hon. Friend the Secretary of State is consulting at present is very important to the whole future of British industry and the British economy, so does he not think that giving primacy to cooking in that curriculum might be over-egging the pudding?

[Michael Gove]

In design and technology, we absolutely need to listen to those sections of our economy that will generate prosperity for the future and that want people to be well trained. However, cooking is not just important, but critical as a life skill and as a means of ensuring that Britain remains a wonderful and attractive place for visitors and our own citizens. I pay tribute to Henry Dimbleby and John Vincent for the fantastic work they have done on the school food plan.

[Grahame M. Morris (Easington) (Lab)]

I hope that the Secretary of State will reflect on the inaccurate and deeply offensive remarks about teachers, pupils and parents that he made at a conference in London on Thursday. Given his own culpability and the unlimited finance available to his pet project of free schools, will he think again about the funding for schools such as Seaham school of technology in my constituency, which serves one of the most deprived communities in the country? I have a Latin motto for him: sublimiora petamus, or “We must do better.”

[Michael Gove]

I am grateful to the hon. Gentleman for the fair way in which he made his point. My comments were reported from a conference that I spoke at last Wednesday on educational underperformance. It is the case that east Durham performs less well than the rest of the county of Durham and that Durham county council has itself acknowledged that with its East Durham area action partnership. It is also the case that half the secondary schools in east Durham are rated by Ofsted as “requires improvement” or “inadequate”, which is worse than the national average, and that, whether at A-level, AS-level, GCSE or English baccalaureate, these schools are underperforming. I always enjoy my visits to the north-east, but we must work together to help these children secure a better future.

[Claire Perry (Devizes) (Con)]

I am a governor of two academies in my constituency of Devizes, both of which have been asked to become sponsors of primary schools that are doing less well. We are happy to get involved in that process, but the due diligence process is very rapid and there is concern that if we rush, we may ignore important local interests. I have written to the Minister for Schools on that issue. Will he please meet me to discuss this important process as soon as possible?

[Michael Gove]

A Minister will certainly meet my hon. Friend.

[Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

First, we had the pile ’em high, teach ’em cheap approach to child care and in the Children and Families Bill, there is a move towards agencies, but there has still been no unveiling of the supposed policy on tax breaks for working parents. Will the Secretary of State let us know when that is coming and whether it will replace the tax credits that parents already get?

[Michael Gove]

All tax issues are a matter for the Chancellor of the Exchequer. His policies are always right and should always be announced when he wishes to announce them and not, however beseeching the hon. Lady’s questions are, when she wants them to be announced.

[Annette Brooke (Mid Dorset and North Poole) (LD)]

What advice would the Minister give to the governors of the school that I visited this morning, which, despite their best efforts, has a low take-up of free school meals and, as a consequence, is in receipt of considerably less pupil premium than similar schools nearby?

[Mr Laws]

My hon. Friend makes a powerful point. Many schools across the country could be receiving far greater amounts of pupil premium if they ensured that all their pupils were registered. The Department recently put out information showing the great range in the take-up of free school meals and advice on how schools should seek to raise that figure.

[Alex Cunningham (Stockton North) (Lab)]

Further to the question from my hon. Friend the Member for Easington (Grahame M. Morris), the Secretary of State has failed to answer the series of questions from The Northern Echo after his disparaging remarks about some east Durham schools. Will he say how many of the schools he referred to he has actually visited or will he have the decency to apologise for his remarks?

[Michael Gove]

I was first alerted to the problems in east Durham schools when I visited schools in north and north-west Durham and those who were responsible for raising attainment in those schools shared with me their concerns about the underperformance in east Durham. I look forward to working with the hon. Gentleman to deal with the problems at Dene community school of technology, Seaham school of technology, Easington community science college, Wellfield community school and St Bede’s Catholic comprehensive school, all of which have underperformed dramatically compared with the national average in English baccalaureate scores and all of which do not yet provide the quality of education that children deserve.

[Several hon. Members]

rose—

[Mr Speaker]

I am sorry to disappoint the remaining colleagues, but we must move on. Before I call Mr John Baron, I should as a courtesy explain to the House that since my selection of this urgent question, I have been informed that it is the intention of the Foreign Secretary to make an oral statement to the House later this week. That is welcome, although we had no way of knowing about it in advance of my decision. In view of that fact and the important legislative business to follow, I might not feel able to accommodate all those who seek to catch my eye today. I ask colleagues to understand that they may have to wait until later in the week to put their questions on this matter to the Foreign Secretary. In the approximately half an hour that is available today, we shall do our best.

Petition

Monday 4th March 2013 Commons Chamber

Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)

- Hansard - - Excerpts

I am pleased to be able to present this petition on behalf of my constituents, asking the House of Commons to urge the Government to examine the feasibility of bringing the Tyne and Wear Metro to Washington and bringing the Leamside line back into use. The petitioners and I believe that doing so would attract businesses and customers to the area, as well as helping my constituents to travel to work in other parts of the region. This petition is accompanied by one along the same lines that has the signatures of 348 readers of the Washington Star newspaper.

The petition states:

To the House of Commons:

The Petition of residents of Washington and Sunderland West constituency and the surrounding areas,

Declares that there are inadequate public transport links for residents in Washington to access the rest of the Tyne and Wear area, increasing reliance on personal transport and reducing employment and economic opportunities for the town and its residents.

The Petitioners therefore request that the House of Commons urges the Secretary of State for Transport to seriously explore the feasibility of extending the Tyne and Wear Metro to the town of Washington utilising the old Leamside railway line.

And the Petitioners remain, etc.

[P001160]

Syria: anti-Government Forces

Monday 4th March 2013 Commons Chamber

15:33

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

(Urgent Question): To ask the Secretary of State for Foreign and Commonwealth Affairs whether he will make a statement on support for anti-Government forces in Syria.

[The Minister of State, Foreign and Commonwealth Office (Mr Hugo Swire)]

I confirm that the Foreign Secretary will make a statement on this subject later this week.

The UK’s overriding goal is to achieve a political transition in Syria that ends the bloodshed on a sustainable basis. That is why we are working intensively with the United Nations, Arab League Special Representative Brahimi, the United States and our partners in the Friends of Syria to achieve a diplomatic breakthrough. In the meantime, as my right hon. Friend the Foreign Secretary has said, we must continue with our life-saving humanitarian aid and practical support to the Syrian people and opposition.

A key part of our approach is to work to strengthen moderate political forces in Syria that are committed to a democratic future for that country. The Foreign Secretary announced to the House on 10 January that we had committed £9.4 million in non-lethal support to the Syrian opposition, civil society and human rights defenders. As he said at that time:

“All our assistance is designed to help to save lives, to mitigate the impact of the conflict or to support the people trying to achieve a free and democratic Syria…We are also helping the National Coalition to co-ordinate the international humanitarian response, and we have provided a humanitarian adviser to work with it. At all times, we urge the coalition to ensure that all opposition groups meet their commitments on human rights.”—[Official Report, 10 January 2013; Vol. 556, c. 484.]

Despite that assistance, the situation in Syria continues to deteriorate. According to the United Nations, more than 70,000 people have now been killed, the number of refugees in the region is fast approaching 1 million and more than 4 million people are in need of humanitarian assistance.

The longer the situation goes on, the greater the danger that extremism will take hold, the greater the danger of neighbouring countries being destabilised and the greater the extreme humanitarian distress involved. We must therefore do more to try to help save lives in Syria. That is why we led the way in agreeing an amendment to the EU sanctions regime to ensure that the possibility of further assistance was not closed off. We are now able to increase the range of technical assistance and non-lethal equipment that we can provide to the Syrian opposition.

My right hon. Friend the Foreign Secretary is currently travelling in Mali and will return tomorrow to answer Foreign and Commonwealth Office questions. In addition, I reiterate that he will be making a statement in the House on this very subject later this week.

[Mr Baron]

I thank my right hon. Friend for his statement. I say at the start that the Government have been absolutely right to restrict aid to non-lethal support when assisting anti-Government forces in the civil war. Until recently, a strict arms embargo has been preventing the flow of weapons from the European Union to Syria, but at a recent EU summit the Foreign Secretary appeared to press for that embargo to be at least relaxed. Yesterday, he appeared to suggest that the British Government might at some stage be prepared actively to arm the rebels.

I appreciate the statement that my right hon. Friend the Minister has made today, but I suggest to him that there can be little doubt that, although there has not been a change in Government policy—there cannot be without EU approval—there has been a change in Government thinking. That prompts a number of questions. Why the change in approach and thinking? It is quite clear from yesterday’s statement that the Foreign Secretary believes that a step up in support by way of exporting arms is on the agenda. Let us not forget that, only in January, the Government were strongly advocating non-lethal support for opposition forces.

What discussions has the Foreign Secretary had with fellow Security Council members? I suggest to my right hon. Friend the Minister that any increase in our support by way of arms can only escalate the violence on the ground in the short term, and with it the suffering of the people. Both sides have been accused by human rights groups of committing atrocities, and that is important to remember.

What calculation have the Government made? Is the thinking that a sharp escalation will somehow bring this torrid affair to an end, and that the only way to quicken the end is to arm the rebels? Moreover, there are credible reports that extremists are fighting alongside the rebels. Will the Minister update the House on that matter, and what guarantees can he give that if we were to export arms to rebels, they would not fall into the hands of terrorists? It is difficult to ensure on the ground that that does not happen.

I advise caution. The Foreign Secretary appeared to be contemplating stepping up support for one side in the civil war, but both sides have been committing atrocities. We may be supplying the terrorists of the future and shipping arms does not reduce tensions. Such a policy would also bring us closer to intervention. When we supplied arms to Iraq during the Iraq-Iran war, a lot of people died but in the end neither side became our friend. Interventions rarely go to plan and I hope the Government will think carefully before pushing for a change to this policy with regard to neighbours and friends.

[Mr Swire]

I thank my hon. Friend for his question, which gives me the opportunity to state again that the change in the EU sanctions to which he alluded is about non-lethal equipment and technical assistance. The Foreign Secretary was tempted yesterday on the “The Andrew Marr Show” to go further, but right hon. and hon. Members will have to wait for his statement, because he wishes—quite properly—to make his position clear in this House.

My hon. Friend mentioned the suffering of the people, and that is precisely what the change is designed to help alleviate. It is worth remembering that 4 million people are now in need of urgent assistance and that 2 million have been internally displaced. More than 900,000 Syrian refugees are in need of assistance in neighbouring countries, and my hon. Friend of all people will be acute to the dangers of unsettling regional areas close to that country.

The change under debate is about ensuring that all options are on the table and that EU countries have maximum flexibility to provide the opposition with all necessary assistance to protect civilians. We want to support moderate groups precisely to boost their appeal and effectiveness over the extremists to whom my hon. Friend alluded. I assure him that the support we provide is carefully targeted and co-ordinated with like-minded countries, consistent with our laws and values, and based on rigorous analysis.

[Ian Lucas (Wrexham) (Lab)]

I think on both sides of the House there is a sense of profound frustration and disgust at the continued violence in Syria, and consternation at the remarks made by President Assad over the weekend which—we agree with the Foreign Secretary—were “delusional”. As the Minister said, the death toll in Syria approaches 70,000 people; human rights groups have estimated that 4,000 people died last month alone. We have all been frustrated by the lack of progress at the UN Security Council to reach a collective position, and the pressure to urge for further action is understandable.

We welcome recent steps taken by the Syrian opposition coalition towards a political transition plan, and we must maintain the pressure on Assad. What is the Minister’s assessment of the current sanctions, and what steps can the international community take to ensure that they are comprehensively enforced?

Let me turn to UK support and the potential easing of the EU arms embargo in Syria. Labour Members have repeatedly stressed that all efforts must be focused on bringing an end to the violence, not fuelling the conflict. Given comments by the Foreign Secretary over the weekend, it seems there is some consideration by the British Government for the EU arms embargo to be amended further and—potentially—lifted. Will the Minister clarify today at the Dispatch Box whether that is the case?

Is the Minister aware that last week The New York Times reported that arms are being procured from a European source for the Syrian opposition, and that that is happening now? Is the Foreign Secretary aware of those allegations, and when did he and other Foreign Office Ministers become aware of them? What discussions has the Foreign Secretary had with his EU partners on the sourcing of arms for opposition parties in Syria?

In an interview this weekend the Foreign Secretary admitted that when it comes to lifting the arms embargo the

“risks of arms falling into the wrong hands is one of the great constraints. And it is one of the reasons we don’t do it now.”

At the same time, however, he said that he did not rule out anything for the future. What assurances or guarantees will the Government seek before lifting any arms embargo? The Foreign Secretary said that this was a matter of balancing risks, but will the Minister set out further details about how the balance of risk is currently being assessed?

We are aware that al-Qaeda is operating in Syria. What is the British Government’s assessment of the scale of its activity as part of the opposition to Assad? All of us in the House have the same objective: to end the deaths and the violence and to leave the Syrian people free to decide their own future in a peaceful Syria. All our efforts must be focused on that end.

[Mr Swire]

The hon. Gentleman raises a number of interesting points, but he is working on the premise that this is somehow about lifting the arms embargo. He will be able to question the Foreign Secretary more closely on that matter later this week, but I say again that this is about non-lethal equipment and technical assistance; it is not about lifting any arms embargo. It is worth reiterating the kind of aid that we have been giving. For example, 5 tonnes of water purification equipment, power generators and communications kit were delivered in December. We have agreed funding to train Syrians to gather evidence of torture and sexual abuse, and we have trained activists to form a network of peace-building committees across five cities in Syria—[Interruption.] I would have thought that the hon. Member for Wallasey (Ms Eagle) would have been interested in these humanitarian aspects. I shall address my points through the Speaker to the hon. Member for Wrexham (Ian Lucas).

There has been a change, in that the new Secretary of State Kerry and the Foreign Secretary agreed when Mr Kerry visited London last week that, because of the deteriorating situation and the increasing loss of life, the situation in Syria demanded a stronger response from the international community. At the Friends of Syria meeting in Rome, the US announced an additional $60 million of non-lethal aid to the armed opposition to bolster popular support. We believe that those are all moves in the right direction.

The hon. Gentleman asked specifically what we could do to prevent arms from falling into what he described as the “wrong hands”. We are not providing arms to either side, as he well knows, and we urge countries that are providing arms to the Assad regime to desist from doing so and to stop contributing directly to the misery of that wonderful country.

[Several hon. Members]

rose—

[Mr Speaker]

Order. In order to maximise the number of contributors, I appeal for short questions and short answers.

[Sir Peter Tapsell (Louth and Horncastle) (Con)]

May I put it to the Minister, as I have on previous occasions to the Foreign Secretary, that the carnage in Syria is a manifestation of the 1,500-year religious civil war between Sunni and Shi’a that is now resurgent in Iraq and Pakistan, and elsewhere in the Islamic world? The only way to stop it in Syria is to persuade Saudi Arabia and Qatar on the one hand, and Iran on the other, to stop sending arms to their co-religionists before Syria inevitably breaks up into two separate countries, which would solve no problems at all.

[Mr Swire]

I am grateful to my right hon. Friend for giving us that historical perspective. Although I have not been to Syria for many years, I know the country relatively well, and I weep when I think of the human carnage being wreaked on it by that deluded Assad—given his interview over the weekend, there can be few in the House who would not agree with that term.

On a positive point, the national coalition has committed to protect the rights of minorities and is also working to increase minority representative membership within the coalition. My right hon. Friend is absolutely right to say that we want to ensure that any peaceful, democratic transition to the more open society that the Syrian people deserve should respect the rights of all the citizens of that country, be they Alawite, Sunni or Christian.

[Mr Peter Hain (Neath) (Lab)]

I urge the Foreign Secretary, in his forthcoming statement to the Commons, not to change Government policy. This is a military stalemate that cannot be won by the rebels or by the Government. Handing weapons to jihadists and Salafis who are leading attacks and planting bombs will make the killing worse, not better, and will hinder aid efforts with which the UK Government are helping. I urge him not to get dragged into the quagmire of a catastrophic civil war. President Assad, with all his flaws, announced at the weekend that we need to promote negotiations, and the opposition leader has said that he is ready to do so.

[Mr Swire]

My right hon. Friend the Foreign Secretary will hear what the right hon. Gentleman says, and he makes a valid point. I stress again, however, that the change to EU sanctions legislation concerns the provision of non-lethal and technical assistance; it is not concerned with the provision of weapons or with arming either side. I repeat what I said earlier: the countries arming President Assad’s Government in particular should stop, because it is they who are directly contributing to the carnage unfolding in Syria.

[Richard Ottaway (Croydon South) (Con)]

I congratulate the Minister of State on stepping in at short notice, particularly for a brief with which he is not familiar. I agree with him completely that there are several questions—who is arming, what they are being armed with and the nature of the EU embargo—that will be far better answered by the Foreign Secretary later in the week. A humanitarian disaster is occurring on the Jordanian and Turkish borders with Syria. Will he give us an indication of the levels of help and assistance being given by the British Government?

[Mr Swire]

It is not for me to question the Chair of the Foreign Affairs Committee. I think that somewhere inherent in his remarks was a compliment—at least I like to think so. I assure him that the Foreign Secretary, who as he says is better placed to answer these questions, will give him a full update on humanitarian assistance to the neighbouring countries to which he alluded.

[Angus Robertson (Moray) (SNP)]

Advice to UK Governments has been that regime change cannot be the objective of military actions. Although there is cross-party consensus condemning the Assad regime and its brutality, will the Minister assure the House that proper respect will be shown to international law?

[Mr Swire]

I wish only that President Assad showed any interest in international law, any law, or any kind of human decency—a decency that the EU and the countries that are trying to help the people of Syria are currently showing.

[Martin Horwood (Cheltenham) (LD)]

I welcome the Minister’s cautious yet well-informed replies. In the case of Syria, should we abide by the rule of three used by the Foreign Secretary with regard to Libya, which is that no state should intervene militarily except where there is a strong humanitarian and legal case, regional support and explicit UN sanction—three things notably absent 10 years ago in Iraq?

[Mr Swire]

No one is talking about intervention of that sort, but I ask the hon. Gentleman to reflect on the fact that in Syria there are now 4 million people in need of urgent assistance, 2 million people have been internally displaced, and 900,000 refugees are in need of assistance in neighbouring countries. The instability that that is causing in Syria is evident for all to see, but the instability that it is causing in the region is, in the long term, as much of a worry.

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

Will the Minister clarify what forms of non-lethal force multipliers will be given to help an already well-armed opposition which is being supplied by some Arab countries, and which has captured many arms supplied by Russia and Iran to the Assad Ba’athist-fascist regime?

[Mr Swire]

My right hon. Friend the Foreign Secretary was tempted to list them during his interview on “The Andrew Marr Show” yesterday, but resisted doing so. As a former Chair of the Foreign Affairs Committee, the hon. Gentleman will understand that the proper place for the Foreign Secretary to list them and state policy is right here in the House. He will be doing just that later this week.

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

If the dreadful Assad regime is overthrown, as the Government wish, the Government will no doubt feel very pleased. However, how long will that pleasure last if the successor regime contains elements of al-Qaeda, which then gets its hands on the stocks of Syrian chemical weapons that are known to exist, and uses them against the west?

[Mr Swire]

My hon. Friend makes a valid point, although there are a lot of ifs in his question. The whole point of providing the additional aid is to bolster the opposition groups in Syria in order to prevent the country from sliding into the kind of anarchy that he describes.

[Mr George Howarth (Knowsley) (Lab)]

Is it not the case that, although all options are still on the table, the slaughter on the ground continues? Does the Minister agree that sadly this is another demonstration of the inadequacy of international organisations, most particularly the United Nations, in dealing with these problems as they arise, and is it not time for major a reform of how international organisations respond to these situations?

[Mr Swire]

I share the right hon. Gentleman’s continuing concern about the inability of either Russia or China to take the same view as other members of the UN Security Council, but I am proud to stand in front of the House to announce that the UK and its EU partners have taken this measure. Where we lead, others should follow.

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

The Minister will note the reports about divisions within the Syrian coalition. For example, Mr al-Khatib, the leader of the Syrian coalition, on the one hand wanted discussions with the regime, but on the other hand did not want to go to Rome to take part in the international conference. What steps are being taken to unite the opposition? Without a united opposition, there will be no real transition in Syria.

[Mr Swire]

These things are never exact in what is an ever changing situation, but clearly the meetings in Rome, those before Rome and those that will follow on from Rome are all designed to bolster the opposition so that it can speak with one voice and be seen as a credible, accountable and democratic alternative, concentrating on human rights and the rights and welfare of the people—in stark contrast to the current regime, which we must all pray the opposition replaces at the earliest opportunity.

[Mr Speaker]

I understand the Minister of State’s temptation to look behind him at the person by whom he is being questioned, but if he could face the House, we would all be doubly grateful.

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

Will the Minister update the House on what discussions the Government have had with Turkey and tell us whether Turkey is arguing for or against lifting the arms embargo?

[Mr Swire]

My right hon. Friend the Foreign Secretary will no doubt wish when addressing the House to update Members on the situation in Turkey, as well as that in all other neighbouring countries and others closely involved in Syria.

[Mr Julian Brazier (Canterbury) (Con)]

May I urge my right hon. Friend to put Lebanon at the heart of the Government’s considerations? It is a country that has been repeatedly destabilised and brutalised by the Assad regime and which currently enjoys the only cross-confessional army in the area, which is widely respected.

[Mr Swire]

My hon. Friend mentions another country affected directly by the actions of the Syrian regime—and a country I know well—and clearly we have to watch the situation there. I think the Foreign Secretary was in Lebanon as recently as last week and again will want to update the House on what he discussed there. He met refugees, among others, while he was there.

[Mr Tom Watson (West Bromwich East) (Lab)]

The New York Times and other reports have claimed that the Croatians have provided weapons, paid for by the Saudis and with the tacit support of the United States, to the Free Syrian army and that there is emerging evidence that grenade and rocket launchers have been found in the hands of jihadist movements. Is this the case? I know it is difficult on a Monday afternoon responding to an urgent question, but will the Minister say what representations the UK Government have made to Croatia about this?

[Mr Swire]

I am not aware of the story that the hon. Gentleman alludes to, but he follows the press more closely than most people in the House. I will write to him with the full facts.

[Mr Philip Hollobone (Kettering) (Con)]

I have recorded in the register my recent visit with the Council for European Palestinian Relations to Lebanon to visit some of its 20,000 double refugees—Palestinian refugees who were living in Syria but who have now fled to Lebanon and so have been made refugees twice over. Will the Minister ensure that his colleagues in the Department for International Development liaise with the United Nations Relief and Works Agency—because that body, not the United Nations High Commissioner for Refugees, is dealing with these refugees—to see what extra assistance the UK Government can give?

[Mr Swire]

Indeed. I have seen UNRWA’s work at close hand in the past, and a very excellent job it does.

I think that the United Kingdom has a good story to tell. Our total funding for Syria and the region now stands at £139.5 million, and will provide humanitarian aid such as food, medical care, blankets and clean drinking water for hundreds of thousands of people in Syria and, critically, in the region. That is something that I feel the House should applaud.

[Mr Khalid Mahmood (Birmingham, Perry Barr) (Lab)]

Is the Minister aware that a number of Syrian, Kurdish and Muslim extremists are travelling to Syria to join the rebellion and fight along with al-Qaeda? What steps is he taking to prevent that insurgency from extending to the United Kingdom?

[Mr Swire]

The sooner we can bring the situation in Syria to an end, the sooner we can reduce the need for any kind of people to seek to fight on one side or the other. The way in which to do that is to embolden the official opposition, which we are supporting. We hope that these new measures will go some way towards strengthening the opposition and allowing it to position itself as the Government in waiting.

[Andrew Stephenson (Pendle) (Con)]

In response to questions from my hon. Friend the Member for Colne Valley (Jason McCartney) and me during his last statement to the House on 10 January, the Foreign Secretary confirmed that the European Union arms embargo covered non-lethal items such as body armour and kits to protect or guard against the use of chemical weapons, and spoke of the need for flexibility in regard to the embargo. Can my right hon. Friend confirm that the policy has not really changed?

[Mr Swire]

Let me repeat that the amendment of the EU arms embargo allows us to provide a wider range of non-lethal equipment and technical assistance that will do more to save lives. My right hon. Friend the Foreign Secretary intends to make a statement to the House about UK assistance on Wednesday 6 March, and the details are being finalised.

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

My hon. Friend the Member for New Forest East (Dr Lewis) has already mentioned Assad’s stockpile of chemical weapons. What contingency arrangements have been made by the British Government and our allies in case Assad decides to use those weapons, or they fall into the hands of extremist groups?

[Mr Swire]

Any use of chemical or biological weapons would of course be abhorrent, and would send a further signal of the depths to which the Assad regime would be willing to stoop to attack its own people. The regime is under intense international scrutiny, and any use of such weapons would be universally condemned.

[Henry Smith (Crawley) (Con)]

May I ask what efforts are being made to bring the Syrian crisis to a conclusion through the G8, especially given that one of its members is the Russian Federation?

[Mr Swire]

I have not seen the agenda for the forthcoming G8 summit, but I have no doubt that Syria will be discussed, even if it is not on the agenda itself.

[Mr Peter Bone (Wellingborough) (Con)]

Many people will see this as mission creep, and will feel that we are being drawn ever more into a civil war and the taking of sides. Is that a fair description?

[Mr Swire]

No, it is not a fair description, and I have spent the past 35 minutes or so trying to illustrate why it is not. Today is about non-lethal equipment and technical assistance to embolden the Syrian opposition and encourage it to provide a credible Government to replace the brutal dictatorship of President al-Assad.

Points of Order

Monday 4th March 2013 Commons Chamber

16:03

[Angus Robertson (Moray) (SNP)]

On a point of order, Mr. Speaker. Over the last few days, there has been widespread Government briefing about the contents of the impending United Kingdom defence basing review, on which we expect a statement in the House at some point this week. Will you please clarify, Mr. Speaker, whether it is appropriate for newspapers to be briefed in detail by the Government before the House is, especially on such an important subject?

[Mr Speaker]

I am not familiar with the reports to which the hon. Gentleman has referred, but suffice it to say that ministerial statements of public policy should be made first in the House. If the hon. Gentleman has compelling evidence to the contrary and wishes it to be brought to a wider audience, I suspect that he will require no further encouragement from me.

[Mr Peter Bone (Wellingborough) (Con)]

On a point of order, Mr. Speaker. The Minister of State has just said that there will be a statement from the Foreign Secretary this week. Would it have been in order for him to tell the House on which day it would be made? [Hon. Members: “He did.”] Would it be possible for my hearing to be improved, Mr. Speaker?

[Mr Speaker]

My hunch is that—if I remember correctly, either from what emerged from the lips of the Minister of State or from information from my own usual channels—the intended date is Wednesday this week.

[Mr Swire]

indicated assent.

[Mr Speaker]

The Minister is nodding, which is encouraging both to me and to the hon. Member for Wellingborough (Mr Bone). I do not think that the hon. Gentleman’s hearing requires any improvement.

Justice and Security Bill [Lords] (Programme) (No. 2)

Monday 4th March 2013 Commons Chamber

Motion made, and Question proposed,

That the Order of 18 December 2012 (Justice and Security Bill) [Lords] (Programme)) be varied as follows:

1. Paragraphs 4, 5 and 6 of the Order shall be omitted.

2. Proceedings on Consideration and Third Reading shall be concluded in two days.

3. Proceedings on Consideration shall be taken on each of those days as shown in the following Table and in the order so shown.

4. Each part of the proceedings shall (so far as not previously concluded) be brought to a conclusion at the times specified in relation to it in the second column of the Table.

TABLE

Proceedings	Time for conclusion of proceedings
First day
Amendments to Clause 6, other than amendments to leave out Clause 6; New Clauses relating to cases to which proceedings under Clause 6 are not applicable; amendments to leave out any of Clauses 6 to 14.	8 pm
Remaining New Clauses and New Schedules relating to Part 2; remaining amendments to Clauses 7 to 16.	10 pm
Second day
New Clauses and New Schedules relating to Part 1; amendments to Clause 1; amendments to Schedule 1; amendments to Clauses 2 to 5; amendments to Clause 17; amendments to Schedules 2 and 3; amendments to Clause 18; remaining proceedings on Consideration.	One hour before the moment of interruption.

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on the second day.—(James Brokenshire.)

16:04

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

I believe that the Bill, being a constitutional Bill, is of enormous importance to the well-being of our society. The concepts contained in it touch on the very intimacy of our concepts of liberty and due process. I therefore object to the guillotine motion on the basis that it is a truncation of the most primary and fundamental charge that this House has: namely, to give all due consideration to Bills that touch on our constitutional rights, our freedoms and our liberty. The Bill seeks to do something very profound indeed: to deny open justice on the basis that we will get better justice by making it covert or secret. It would place a British citizen in the position of not knowing why they might have lost a claim in the courts, and their lawyer will not be able to tell them why either. Surely this House should be given the time it requires to consider the Bill, which is on a constitutional matter of the gravest importance, and examine fully the contentions contained therein.

16:06

[Mr Peter Bone (Wellingborough) (Con)]

Following that excellent speech from my hon. Friend the Member for Aldridge-Brownhills (Sir Richard Shepherd), I would like to add my support to his argument. The Government seem routinely to table programme motions of the sort they opposed when in opposition. They really do not need a programme motion. We are not exactly pressed for business at the moment. It seems to me that on the constitutional matter we are discussing, which is extremely important, and there are deep arguments about it on both sides, we should have unrestricted time to scrutinise it.

16:07

[Sadiq Khan (Tooting) (Lab)]

I do not disagree with the substance of the comments made by hon. Members, but my concern is that a Division now would eat into the time available for debating some very important clauses. I say to those colleagues who have spoken, who have the best intentions, that by dividing the House we are in danger of eating into that valuable time.

16:07

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I wish to make it clear that the programme motion before the House respects the fact that the Bill’s original programming indicated that there would be two days for Report and remaining stages. That is what we have put before the House today. Indeed, the programme motion seeks to reflect the issues and concerns expressed in Committee by prioritising matters to ensure that all issues that need to be debated are discussed fully. Therefore, for the reasons that have been alluded to, to allow debate to take place and not to lose time, I urge the House to accept the programme motion so that we can move on to the debate at hand, which is about underlining that the Bill will deliver more justice, not less.

Question put and agreed to.

Justice and Security Bill [Lords]

Monday 4th March 2013 Commons Chamber

[1st Allocated Day]

[Relevant document: The Eighth Report from the Joint Committee on Human Rights of Session 2012-13, Legislative Scrutiny: Justice and Security Bill (Second Report), HC 1014.]

Consideration of Bill, as amended in the Public Bill Committee.

Clause 6

Declaration permitting closed material applications in proceedings

16:09

[Sadiq Khan (Tooting) (Lab)]

I beg to move amendment 26, page 4, line 39, leave out ‘two’ and insert ‘three’.

[Mr Speaker]

With this it will be convenient to discuss the following:

Government amendments 27 and 42.

Amendment 28, page 5, line 4, after ‘proceedings)’, insert

‘and such disclosure would be damaging to the interests of national security’.

Government amendments 43, 44 and 29.

Amendment 30, page 5, line 36, leave out from ‘that’ to end of line 37 and insert

‘the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.’.

Amendment 31, page 5, line 37, at end insert—

‘(6A) The third condition is that a fair determination of the proceedings is not possible by any other means.’.

Amendment 32, page 5, line 38, leave out ‘two’ and insert ‘three’.

Amendment 33, page 5, line 40, leave out from ‘proceedings’ to end of line 41.

Government amendments 46 and 47

Amendment 34, page 5, line 41, at end insert—

‘(7A) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material.’.

Amendment 70, page 6, line 22, at end insert—

‘or proceedings at an inquest conducted by the Chief Coroner or a High Court judge.’.

New clause 2—Proceedings in which section 6 proceedings are not applicable—

‘(1) Section 6 proceedings will not be applicable in proceedings where the outcome could result in, contribute to, or impede efforts to challenge the—

(a) imprisonment; or

(b) continued detention

of a party, whether in the UK or overseas.

(2) Section 6 proceedings will not be applicable in proceedings—

(a) relating to conduct which may amount to commission of the following domestic and international wrongs—

(i) genocide;

(ii) murder;

(iii) torture;

(iv) slavery;

(v) cruel, inhuman or degrading treatment;

(vi) child abuse; or

(vii) other matters that the court regards as breaches of the Geneva Conventions.

(b) where there is a real risk that non-disclosure of that material or information may result in the wrongful imprisonment of an individual in the UK or overseas or the death of an individual overseas.’.

Amendment 1, page 4, line 29, leave out clause 6.

Amendment 2, page 6, line 25, leave out clause 7.

Amendment 3, page 7, line 4, leave out clause 8.

Amendment 4, page 8, line 1, leave out clause 9.

Amendment 5, page 8, line 25, leave out clause 10.

Amendment 6, page 8, line 30, leave out clause 11.

Amendment 7, page 9, line 16, leave out clause 12.

Amendment 22, page 10, line 4, leave out clause 13.

Amendment 23, page 11, line 17, leave out clause 14.

New clause 7—Notifying the media of CMP applications and media rights to make submissions—

‘(1) Rules of court relating to section 6 proceedings must make provision—

(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made;

(b) providing for any person notified under paragraph (a) to intervene in the proceedings;

(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings;

(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings; and

(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.’.

New clause 8—Ensuring closed judgments can become open when secrecy is no longer required—

‘(1) Rules of court relating to sections 6 and 7 proceedings must make provision—

(a) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings; and

(b) requiring the court concerned, on an application under paragraph (a), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld;

(c) ensuring applications under paragraph (a) are not granted more than once in any 12 month period;

(d) enabling the court to deny a paragraph (a) application if the court views it as an abuse of process; and

(e) ensuring that all closed judgments undergo a paragraph (a) determination every five years, even in the absence of an application under paragraph (a).’.

Amendment 35, in clause 7, page 6, line 29, leave out from ‘that’ to end of line 30 and insert—

‘any of the conditions in subsections (4) to (6A) of section 6 is no longer met.’.

Amendment 36, page 6, line 33, leave out from ‘that’ to end of line 34 and insert

‘any of the conditions in subsections (4) to (6A) of section 6 is no longer met.’.

Amendment 37, page 6, line 41, leave out from ‘whether’ to second ‘the’ in line 43 and insert

‘any of the conditions in subsections (4) to (6A) of section 6 is no longer met.’.

Government amendment 48.

Amendment 38, in clause 8, page 7, line 18, at end add

‘and that damage outweighs the public interest in the fair and open administration of justice’.

Amendment 39, page 7, line 20, leave out ‘consider requiring’ and insert ‘require’.

Amendment 40, page 7, line 22, at end insert

‘sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates.’.

Government amendments 50 and 65.

[Sadiq Khan]

Let me begin by making it absolutely clear to the House where the Opposition stand on the issue of closed material procedures in civil proceedings. We accept that there may be rare examples where it is preferable for a CMP to be used because there is no other way a particular case can be heard. Our position has been influenced to a large extent by the views of the independent reviewer of terrorism legislation, Mr David Anderson QC. He has written two memorandums on the proposals in the Bill and has given evidence to the Joint Committee on Human Rights. He has said that

“there is a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

We are persuaded.

There may be rare examples where it is preferable for a CMP to be used because existing tools used by the court—for example, public interest immunity, redaction, confidentiality rings and in-camera hearings—may not be sufficient to allow sensitive intelligence material to be disclosed in court, meaning there may be no other way a case can be heard. However, we do not give unqualified support and shortly I will deal with some of the conditions we consider must be attached to the extension of CMPs, conditions which David Anderson said were important.

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

I apologise for intervening so early in the right hon. Gentleman’s speech. David Anderson used the word “small” in those comments, but the Government’s impact assessment indicated that there will be about 15 of these cases a year. We should therefore not underestimate exactly what we are talking about.

[Sadiq Khan]

I believe that one of the impact assessments gave a figure of seven, whereas the press reports I read over the weekend mentioned one of 15. For those reasons, it is important to attach great weight to the conditions to which David Anderson refers. We would not wish, inadvertently, to see more cases than the Government say they expect to be reaching a CMP.

[Minister without Portfolio (Mr Kenneth Clarke)]

It seems to me that we do not know how many of these cases there will be, because we do not know what effect the new process will have. This is becoming a popular jurisdiction and the number of cases is slowly climbing, because no defence is offered to people’s claims and they are being awarded quite large sums of money. Once it is possible for the Government to defend themselves, people will, presumably, think more clearly about the substance of their allegations before bringing claims, and we just do not know how many we will have.

[Sadiq Khan]

May I adopt the Minister’s arguments in support of our sunset clause, which we will be debating later? He cannot predict the number of cases, which is why we think a sunset clause is appropriate.

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

Will the right hon. Gentleman give way?

[Sadiq Khan]

Briefly, because I actually want to start my speech.

[Simon Hughes]

Does the right hon. Gentleman mean a sunset clause or does he mean a renewal order, which is a different thing?

[Sadiq Khan]

I mean the latter, and we will discuss that after the votes at 8 pm, when my colleague will be dealing with those things. However, the right hon. Gentleman is right to remind the House of the difference between the two measures.

Our conditions are set out in the amendments standing in my name and those of my hon. Friend the Member for Hammersmith (Mr Slaughter), the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Moray (Angus Robertson). Labour’s position has been consistent on this matter since the publication of the draft Bill. We said that the legislation was drafted in such a way that there were too few safeguards in place on the use of CMPs. Safeguards are crucial because CMPs are alien to our tradition of open and fair justice, where justice is not only done, but is seen to be done. Any proceedings held in secret are a major departure from that. Given the exceptional and aberrant nature of CMPs, their use should be clearly constrained. That has been our position and remains so now: consistent and clear, balanced and proportionate. The Lords delivered a strong and clear verdict on the Bill last November.

[Mr George Howarth (Knowsley) (Lab)]

My right hon. Friend sets up a choice between open proceedings and CMPs, but is not the real choice between public interest immunity, where nothing ever gets heard by anybody, and CMPs?

16:14

[Sadiq Khan]

Public interest immunity is a device by which we can exclude evidence, but it can also lead to hearings with some anonymity of witnesses, to the redaction of documents and to confidentiality rings. The choice is not simply between the exclusion of material or its admissibility—evidence can become admissible through certain devices, which I shall come on to shortly if my right hon. Friend gives me time to develop my argument.

Labour, Liberal Democrat, Conservative and Cross-Bench peers agreed that the original Bill was poorly drafted and gave too much power to Ministers to decide what did or did not stay secret in court proceedings. Amendments were passed by substantial margins to put in place what we considered to be appropriate checks and balances. No longer would the decision on whether a proceeding was held in secret be in reality taken by a Minister with the façade of a judge’s rubber-stamping it. Instead, it would be truly taken by a judge, who would be empowered to balance the public interest of holding proceedings in the open against the public interest of holding proceedings behind closed doors due to the harm done to our national security. The Lords amendments would also have ensured that the use of a CMP remained a last resort, as befits something that is anathema to open and fair justice and that, as all sides accept, should be used only in exceptional circumstances.

[Caroline Lucas (Brighton, Pavilion) (Green)]

Will the right hon. Gentleman give way?

[Sadiq Khan]

I will, but then I must make progress or we will reach the knife before I have finished my speech.

[Caroline Lucas]

The shadow Secretary of State is very kind to give way. Does he not recognise that if CMPs are available, even if in theory they are a last resort, that very fact will mean that they will be used? Huge numbers in the legal profession want to get rid of secret courts in civil law altogether, which is what my amendments would achieve.

[Sadiq Khan]

If the hon. Lady reads the Supreme Court judgment in al-Rawi, she will see that one of the court’s concerns was about not having in its toolkit the ability to have a CMP in an appropriate case. Its point was that it is for Parliament to add the option of a CMP to the armoury in the toolkit to be used after all the other options have been exhausted. Our amendments seek to do that. CMPs will not be the first choice made by a judge, but as a last resort judges might decide to use one if all the other tools in their toolkit are inadequate.

Further amendments were also made that permitted all parties to seek the use of a CMP and not just the Government, and to ensure that the judicial balancing of public interest and national security also took place once proceedings were being held in secret. There was a degree of contentment on Second Reading in the Commons that because of the improvements made by the Lords, the worst excesses of the proposals had been ameliorated. The former leader of the Liberal Democrats, who is also a member of the Intelligence and Security Committee, the right hon. and learned Member for North East Fife (Sir Menzies Campbell), said that

“the amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable.”—[Official Report, 18 December 2012; Vol. 555, c. 713.]

We agree. He not only wanted the Government to accept the amendments but wanted to persuade them to accept further amendments with the purpose of extending the discretion of the court, and we also agree with that.

The pity is that the Government shredded the Lords amendments as the Bill progressed through Committee. I must also, at this point, put on record how disappointing it was that the Government tabled its amendments at such late stages on repeated occasions—they did so at the latest stages possible, both in Committee and now on Report. It is unacceptable that the Bill had its Second Reading in the House of Lords on 19 June and yet the Government were still tabling amendments as late as last Thursday, thereby depriving us, interested parties and experts a chance properly to analyse those late amendments. That is not befitting of such a sensitive and complex issue.

Let me turn my attention briefly to the Liberal Democrats. If we are to be successful in our attempts to improve the Bill today, we will need their support. During the passage of this Bill, the Liberal Democrats have had a number of different positions, often at the same time. The grass-roots party voted to ditch part 2 in its entirety, but a Liberal Democrat Minister, the noble Lord Wallace of Tankerness, steered it through its Lords stages and resisted any changes or improvements. Liberal Democrat Back-Bench peers, to their credit, supported the amendments made to the Bill. More than 80% of the Liberal Democrat peers in the House of Lords voted with us to amend the Bill to incorporate the concerns of the Joint Committee on Human Rights and the independent reviewer of terrorism legislation. In Committee, the hon. Members for Cambridge (Dr Huppert) and for Edinburgh West (Mike Crockart) sided with Labour in our amendments to restore the improvements made to the Bill by the House of Lords.

[Dr Julian Huppert (Cambridge) (LD)]

I thank the right hon. Gentleman for his comments and he is right that a number of Labour Members voted with us on a series of our amendments. I was grateful for that support and I hope that it can continue in other areas. Is he also concerned about the number of Labour peers who went home rather than vote, as many Liberal Democrat peers did, on issues such as Wiley balancing in the second stage and the principle of closed material procedures?

[Sadiq Khan]

That is a curious intervention. I am trying to be nice to the hon. Gentleman because I want his vote, so I will not respond in the way his intervention deserves. Instead, I will remind him and the House of what he said in Committee. In response to what was then Government amendment 55, which undid some of the House of Lords improvements, he said:

“I accept that the Minister’s case will be bolstered significantly if the Joint Committee on Human Rights agrees with what he is saying, but”—

this was his advice to the Minister—

“he should reflect carefully on what he will do if that Committee, having looked at the amendments he is proposing and the state of the Bill when that Committee publishes a report, disagrees with him.”

He went on to say:

“I will, further, support any other amendments that take us in the direction of improved safeguards and towards the direction of the Joint Committee on Human Rights”.––[Official Report, Justice and Security Public Bill Committee, 5 February 2013; c. 195.]

I hope the hon. Gentleman and his colleagues will support us and have the courage to vote for our amendments, which reflect the positions taken by Liberal Democrat MPs in Committee and Liberal Democrat peers in the House of Lords. Any other position would be a tragic betrayal of their liberal instincts.

[Simon Hughes]

I want to make it clear to the right hon. Gentleman that my predecessor on the Joint Committee on Human Rights, my hon. Friend the Member for Edinburgh West (Mike Crockart), and I have worked to make a case to push the Government forward. I will support, on all issues, exactly the position taken by the Joint Committee, which says that the Government have moved forward, made progress and improved the Bill, but that more work is to be done.

[Sadiq Khan]

I thank the right hon. Gentleman for that clarity, which shows the advantages of being nice to Liberal Democrats. In case any of his colleagues have any doubt about the advice given, I have the report with me and will remind them of what the Joint Committee said just last week on the Government’s manoeuvres upstairs in Committee.

Given that in Committee the Minister unpicked the Lords changes to the Bill, amendments 26 to 40 are designed to emulate the same improvements as were made in the other place. Our amendments seek to put in place appropriate checks and balances on the use of CMPs. We do not underestimate the difficulties in reconciling the issues of justice and security as contained in the Bill’s title, but this is difficult and not impossible. By putting appropriate measures in place, we believe that the use of CMPs could be made proportionate to the scale of the problem they are intended to address. As has been said, our position is backed by the Joint Committee on Human Rights, whose most recent report systematically goes through the changes made in Committee by the Government and is consistent with the Government’s independent reviewer of terrorism legislation and with the views of the House of Lords.

So here we are once again, trying at a late stage in proceedings to bring some balance to the proposals in front of us. Our amendments address four main areas: judicial balancing both outside and inside proceedings, the use of CMPs as a last resort and equality of arms. I shall deal first with judicial balancing.

We have consistently agreed with David Anderson when he said that

“the decision to trigger a CMP must be for the court, not the Government.”

The original bill, as published, included no substantial role for the judge. I accept that this has been moved on since then, but some of the progress made in the other place has now been undone. Despite claims to the contrary, the Bill does not give a judge the proper discretion to decide between whether to hold proceedings in the open or to move proceedings behind closed doors. The Government chose to remove the Lords amendments that put in place a proper judicial balancing of these competing interests—the so-called Wiley balance.

Last week’s report from the Joint Committee on Human Rights is very powerful on this issue. I pay tribute to the Chair of the Committee, my hon. Friend the Member for Aberavon (Dr Francis), for all its hard work on this. In its report—Liberal Democrat colleagues will be keen to hear this—the Committee says that

“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”

[Mr Kenneth Clarke]

I must have misheard the right hon. Gentleman. He seems to think his amendment widens the discretion of the judge. It actually narrows it. The Bill as it stands says that the judge may hold a closed session after the three conditions are satisfied, which are mainly the fair and effective administration of justice. We have now reached the situation where critics are so nervous about what the judge may do that they want to lay down additional tests that the judge must put to himself before he makes a judgment one way or another. Lord Woolf, the former Lord Chief Justice, this morning made it clear that the judge now has complete discretion to decide what to do, and it is the critics who are so worried that there might be closed material proceedings that they are trying to put in extra tests to try to put the judge off. As the right hon. Gentleman’s amendments narrow the judge’s discretion, he might at least put his case the right way round. As the Bill stands, the judge has a pretty unfettered discretion.

[Sadiq Khan]

On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.

[Sir Malcolm Rifkind (Kensington) (Con)]

rose—

[Sadiq Khan]

I will give way to the Chair of the Intelligence and Security Committee, then I will make some progress.

[Sir Malcolm Rifkind]

Does the right hon. Gentleman not appreciate that the bald choice that he is trying to make between national security and the administration of justice certainly applies when one is considering a public interest immunity certificate, because that removes the evidence completely from the consideration of the courts in the interests of national security? But the Wiley test that he referred to just does not apply when one is dealing with closed material procedures because there is a perfectly good argument—the right hon. Gentleman may not accept it—that the administration of justice is better served by at least the judge hearing all the evidence than the evidence being completely withdrawn and not being able to be taken into account at all.

[Sadiq Khan]

That is exactly what the Supreme Court said in the al-Rawi case: that a judge has at his—I am afraid it mostly is “his”—disposal a number of tools to deal with issues that are sensitive and would create problems for national security. If an application for public interest immunity is made and the certificate is signed by a Minister, the judge will go through a number of loops. He will consider on an application ex parte whether, for example, it is possible to have a fair hearing using anonymity. He will decide whether it is possible to have a fair hearing with confidentiality rings. Imperfect as it is, it is one of the ways in which he will reach a conclusion after balancing the public interest in holding an open and fair administration of justice and the public interest and harm to our national security from disclosure. He does that anyway.

The problem that the Supreme Court recognised in its finding on al-Rawi is that at present the judge does not have the option of a CMP unless we give him that option. That is what the Bill seeks to do. We have explicitly stated in the Bill that there should be a balancing exercise by the judge. In Committee the Ministers tried to limit that. There is no balancing now. All a judge has to consider is whether the procedure is fair and effective, rather than a balance of what is in the public interest.

I am quoting what the Joint Committee said in its report last week, which the Minister finds so objectionable. After his amendments in Committee were defeated by one vote—the Lib Dems voted with Labour—the Joint Committee said that

“there is nothing in the Government’s revised clause 6”—

[Interruption]. The Minister might mutter, but the Committee said that

“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”

For us, this is a failing. The test applied at the gateway is very important.

16:30

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

Will my right hon. Friend give way?

[Sadiq Khan]

I keep saying that I will give way for the last time. This really is the last time.

[Hazel Blears]

For the sake of clarity, will my right hon. Friend confirm that there will be circumstances in which it would be appropriate, in the interests of the fair administration of justice, for there to be a closed material proceeding hearing? If there are allegations that the security services have acted improperly, that information ought to be before the court rather than having the option of settling the case and the information never being subjected to judicial scrutiny?

[Sadiq Khan]

I agree with my right hon. Friend. She basically paraphrases the words of David Anderson, who said that there are a small number of cases where it is preferable for there to be closed material proceedings, imperfect as that is. She is right to remind the House of what David Anderson said, albeit in her own words, and I agree.

The Wiley balance is a tried and tested legal mechanism by which courts can balance these competing interests, and there is considerable case law history to back that up. It was supported by the House of Lords, as I said, including by Lord Phillips, the former president of the Supreme Court. The Government’s changes remove from the Bill all reference to open justice. The fear is that by not taking open justice into account, the likelihood of a CMP taking place will increase to more than the exceptional that the Government have talked about. As I have said, the Government also tabled amendment 55 in Committee, which replaced “open” with “effective”. It is our view, shared by the JCHR and the special advocates, that this is a retrograde step. As I said, the Supreme Court in al-Rawi confirmed that both natural justice and open justice are important but separate fundamental principles, hence our amendment seeks to reintroduce to the Bill the Wiley test of fair and open justice.

[Mr George Howarth]

Will my right hon. Friend give way?

[Sadiq Khan]

I want to make some progress then I will give way.

Paving amendment 26 brings us to amendment 31, which would ensure that the use of CMPs became an option of last resort. Amendment 34 would mean that the court must consider—I emphasise the word “consider” —using public interest immunity before opting for closed proceedings. We believe that those amendments are important for two key reasons. First, deviation from open and fair justice should be considered in only the most extreme of circumstances, and I think there is general agreement there. As the Government have said, CMPs should be used only in exceptional cases. Let me remind the House that on Second Reading the Minister said:

“I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way.”—[Official Report, 18 December 2012; Vol. 55, c. 721.]

By placing in the Bill a provision that states as such, this should help ensure that the use of a CMP does indeed remain exceptional, as we all intend. Secondly, because it also allows the consideration of other measures, such as public interest immunity, redaction, in camera hearings, confidentiality rings and anonymity, all of these would protect the precious open and fair nature of our justice system, which must be one of our priorities.

[Mr Howarth]

My right hon. Friend has moved on from the point I was going to make, but I will return him to it. He has explained how the Wiley test works effectively with public interest immunity cases, but he seems to assume that that test will work equally well in closed material proceedings. I fail to understand how he can justify that statement on the basis of what he has already said.

[Sadiq Khan]

The Wiley balancing exercise has been applied for many years, and there is a rich history of precedent. The Minister plucks from the air “fair and effective”, but that was plucked from the air at the eleventh hour, at the last minute that an amendment could be tabled in Committee. What we, the Joint Committee, the special advocates and the House of Lords are saying is that if there is to be a gateway test before the decision about whether a hearing should be open or under a CMP, or about which material within a CMP should be open or closed, the judge should carry out a balancing exercise. He should weigh the public interest in having an open and fair hearing against the harm done by the revealing of information that would breach national security. That is the test that judges use now and what the Supreme Court judges in al-Rawi would like to have used had they had the option of a CMP, which this Bill would give them.

[Dr Huppert]

The right hon. Gentleman is being generous, although it sounds as if he needs to be nicer to some of his own party’s Back Benchers to get their support on some of these issues. He is making an interesting point about the last resort, and I have some sympathy with that. He will be aware that closed material proceedings were introduced by the previous Government in respect of a number of other cases in British law—in special immigration cases, control orders and employment tribunals. Will he remind the House whether there was a last resort provision for all those? I simply cannot remember—perhaps he can.

[Sadiq Khan]

As the hon. Gentleman will know, this is an extension into civil actions. He is talking about special immigration appeals hearings, but I am talking about something very different: when one party is suing the Executive—the Government—for damages. Historically, the Government could press the “eject” button, but for the reasons given by the Minister and my right hon. Friend the Member for Salford and Eccles (Hazel Blears), we do not want damages to be paid where a case could be exhausted and there could be a resolution of the disputes. That context is very different from one in which somebody’s immigration status is being considered.

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

My question is also to do with the right hon. Gentleman’s concept of the last resort. I think he would accept that one of the reasons why we are enacting this Bill is to avoid an unpalatable situation. People who we might know from secret sources, which we cannot expose in public, to be closely involved in terrorism have been able to sue and walk away with £500,000, £1 million or more. That is what is behind the provision.

It will always be open to the Government to pay the money and thus avoid the action. Will the right hon. Gentleman’s criterion of the last resort mean that we can go for a closed material procedure to avoid having to pay out the money unjustifiably or that we will have to carry on doing what we are doing at the moment—rather than exposing secret sources or techniques, paying out a lot of money to potentially very dangerous people?

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I ask hon. Members to make shorter interventions, although I know it is important to get things on the record.

[Sadiq Khan]

Thank you, Mr Deputy Speaker. Six interventions ago, I said that I would take my last one; I keep being too generous.

The hon. Gentleman’s point would be good if I was suggesting that we remove CMPs altogether. I am saying that a judge should consider—a word that I shall explain in a moment—all other options, including public interest immunity, before going to a CMP. The Government amendment requires the Minister to consider PII; if it is good enough for the Minister, why is it not good enough for the judge?

We are not saying that there should not be CMPs, but that it is exceptional, for the reasons the Government have given. It should happen very infrequently; people have mentioned figures of seven or 15. The Under-Secretary has said from the Front Bench that he is not sure how many, which is why he will be supporting our sunset clause. What I am saying is that asking the judge to consider all the other options would make explicit the intention of Parliament and the Government.

[Caroline Lucas]

Will the right hon. Gentleman give way?

[Sadiq Khan]

I really must make progress; there will be time for hon. Members to contribute after I have finished.

David Anderson, the Government’s independent reviewer of terrorism legislation, has himself said that

“the court’s power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

We should not legislate in a way that means that CMPs will replace tried and tested methods for dealing with sensitive material in open proceedings if those methods will do the job. Only if it is deemed, after consideration by a judge, that those tried and tested measures cannot be employed in a way that would allow important evidence to be used in a public court, would the option of a CMP be considered. The Bill as it stands does not allow for this. Our amendments would not, as some have argued, including the Minister on Second Reading, mean that a full and lengthy PII exercise had to be undertaken before a CMP could even be considered. On the contrary, the key word in all this is “considered”. Our amendments would deliver this. I hope that the House will support that as part of our efforts to maintain as much as possible of the precious traditions of openness in our justice system.

Some have interpreted the Government amendments tabled at the eleventh hour last week as delivering what we and others have asked for. They will lead to a Minister—in other words, one of the parties in the civil action or judicial review—considering the use of PII and the judge having to take their conclusion into consideration when deciding whether to grant a CMP. In our view, this is not an appropriate check and balance, and we will therefore look to amend the Bill accordingly.

Amendment 38 deals with the Wiley judicial balance within the CMP. The Government’s argument for resisting this is the same as their reason for resisting full judicial balancing on the decision on whether to order a closed proceeding in the first place. We are not persuaded of their arguments in that circumstance. We believe that this is another key component of judicial balancing and a crucial check and balance.

Our amendments also deal with the equality of arms. On Second Reading, the Minister said:

“We will also accept that any party, not just the Government, should be able to ask for a closed material procedure.”—[Official Report, 18 December 2012; Vol. 555, c. 722.]

We welcomed that statement. After all, equality of arms is backed by the JCHR and the independent reviewer of terrorism legislation, David Anderson QC. However, following the changes that the Government made in Committee, we now know that their idea of equality of arms is very different from everyone else’s. The JCHR report published last week is highly critical of what was done to the Bill in Committee. It says:

“in our view the Government’s amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State”.

In short, it is a two-tier equality of arms—or, in the real world, an inequality of arms. Our amendment would restore proper equality of arms. I am pleased that the Government have decided to support us and have signed our amendment.

Some have said that the debates at this late stage are nothing more than angels dancing on the head of a pin. I disagree. There remain some fundamental differences, chiefly about judicial balancing and last resort, about which we are still concerned. I hope that colleagues in all parts of the House will support, in particular, amendments 30 and 31. We will first need to vote on amendment 26, which is a paving amendment that would ensure that the Bill contained the proper checks and balances that it needs without having to rely on the other place—with Lib Dem support, I hasten to add—to make sure that there is equilibrium in the great balancing act that we face between our national security and the rights of individuals.

[Mr Kenneth Clarke]

I rise early in the debate because I want to speak to the Government amendments that stand in my name. I have already added my name to two Opposition amendments. As we do not have a great deal of time to discuss some quite complex issues, it will be helpful to set out what those issues are so that we do not have so many interventions when the person who is being intervened on is agreeing with the person making the intervention, as happened several times to the Opposition spokesman.

I think that an ordinary, intelligent person from the outside world who is listening to this debate would be rather baffled as to what is causing us so much concern. It has seemed to me for some time that we are in complete agreement on policy and there is no disagreement between us on the principles of the very great need to protect national security and the equally great need to protect the rule of law, the principles of British justice and all the values that we seek to uphold. We have spent the entire time trying to work out a process for reconciling those principles.

The Opposition spokesman entirely agreed with the interventions by the right hon. Member for Salford and Eccles (Hazel Blears) and my hon. Friend the Member for New Forest East (Dr Lewis), who both put forward the principle that we must find some way of trying these cases properly so that everybody knows that there is justice and that a judge has been able to reach a conclusion on the merits or otherwise of the allegations made. Nobody has yet got up to say otherwise. The real critics of this Bill—I do not think that they are Members of this House—say that, somehow, it is a lesser evil to keep paying out millions of pounds in order to not extend the principle of closed proceedings further than it already exists in British law. The idea seems to be, “What a pity. We hope that none of the millions will go to bad causes,” although I do not think that that argument has an advocate in this place.

What we are doing—we have been having this debate for months—is discussing amendments that would underline the fact that this is a judge-made decision, made with proper discretion and taking the right things into account, and that closed material proceedings will be used only in a very small number of cases that would give rise to issues of national security if they were held in open court.

16:45

[Several hon. Members]

rose—

[Mr Clarke]

I shall start giving way in a moment and will do so at least as frequently as my opponent, the right hon. Member for Tooting (Sadiq Khan).

I will not use my own words to make the general case for the measure. I think I am in agreement with the Labour party, the Liberal Democrats and, I hope, my own party, or at least the bulk of it—that is sometimes the least certain proposition one can make in British politics these days. A collection of people whom I admire wrote to The Times a few months ago:

“In national security matters our legal system relies upon a procedure known as public interest immunity. Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.

This procedure is resulting in a damaging gap in the rule of law. To protect national security evidence from open disclosure the Government is forced to try to agree substantial settlements with claimants who have not had the opportunity to prove their case. Civil damages claims made against the security services are not therefore being scrutinised by a judge in a court.

It was to resolve a similar problem that previous Governments introduced Closed Material Procedures (CMPs) in immigration and control order cases, and courts have ordered them by consent in the past.

CMPs are not ideal, but they are a better option where the alternative is no justice at all. The Special Advocates who operate within them are more effective than they admit…and the Government loses cases in these hearings.

We believe the Government is right therefore to extend the availability of CMPs to other civil courts. This will ensure that the security and intelligence agencies can defend themselves against allegations made against them, that claimants are given the greatest opportunity to prove their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation.”

That puts the general case impeccably. One of the signatories was Lord Reid, the former Home Secretary, which is not too surprising given that most Opposition Members who are former Ministers with experience of dealing with these matters are pretty supportive of the Government and have been throughout, particularly those who are still up to date because they are on the Intelligence and Security Committee. Another signatory was Lord Mackay of Clashfern, who was a Conservative Lord Chancellor many years ago, but who was the most independent Lord Chancellor I can recall. He is an impeccable lawyer and a man whom no one could accuse of not having regard to the rule of law.

I stress that the former Lord Chief Justice, Lord Woolf, whose name has entered the fray again today, is a great defender of personal liberties who invented, I think, the whole concept of judicial review by which Governments are now held to account better by the courts for ministerial decisions. I have great respect for his opinion and today—this is my final quote before I start to give way—he has written:

“What is important is that the operation of…CMPs should be under the complete control of a judge. That the Government has now given him that control is to be welcomed. The Bill now ensures that we will retain our standards of general justice, while also putting an end to the blindfolding of judges in this small number of cases.”

I think that we all agree. There may be some rare exceptions from the ultra-liberal end of the left or the right, but by and large practically everybody in this House agrees with that case. What we are arguing about now is the fact that every time we table an amendment, further amendments are tabled in order to make it more practically difficult ever to have a CMP. The lawyers who are persuading various groups to table those amendments and who are drafting them for them actually think that the law as it stands is perfectly satisfactory, but they keep trying to invent fresh conditions, tests and processes to get in the way of CMPs.

The Litvinenko inquest is proceeding under the old law. I gave in to all the lobbyists who said that none of this should ever apply to inquests. In inquests, secrecy must therefore remain the order of the day so far as the coroner, the family and everyone else is concerned once a PII has been applied for and granted. I do not think that that should apply to civil claims, but people will no doubt try to persuade me that it should.

[Jeremy Corbyn (Islington North) (Lab)]

I thank the Minister for giving way and for the way in which he is trying to present a not very strong case. If we have a Security Service, it must be accountable, and if we have a criminal law process, it must be open. The process that is being introduced and previous processes end up, in effect, with people being criminalised in secret without knowing the full case against them. Does he not accept that there is a danger in the process that he is presenting?

[Mr Clarke]

The Bill most emphatically does not apply to the criminal process. I would be against any evidence of which the offender was not aware being given in a criminal case. That gets us into the control order problem, which is that sometimes there is no evidence in a case, but responsible people are terrified of the prospect of the person being left at liberty because we cannot prosecute. However, that is for another day. I do not believe that there can be a criminal case with secret evidence. I quite agree about that.

In civil cases, I would prefer there to be open evidence all the time. I particularly agree with the hon. Member for Islington North (Jeremy Corbyn) that the security services must be accountable to the courts and to Parliament wherever possible. At the moment, they are not accountable to the courts, because all the material that the Government want to bring in their defence cannot be given in open court. By definition, this is not evidence about our being involved in torture, rendition or anything like that. We deny that we are and most of the allegations are not that we have done such things, but that we have been complicit in another agency doing them. The evidence that we are talking about is evidence that the security services and their lawyers believe would enable them to defend the action and refute the allegations. At the moment, because we cannot hear such evidence in closed proceedings and because it cannot be heard in open court, it is not heard at all. We just offer no defence and pay out. If we have this procedure, it will make the services more accountable to the courts.

The other half of the Bill greatly strengthens the work of the Intelligence and Security Committee, which I approve of, by making it a proper Committee of this House and by strengthening its powers. I agree with the hon. Member for Islington North that we must reassure the public that we are defending our values by the most reputable methods and that we are respecting human rights. There must therefore be accountability to the courts and to Parliament.

[Several hon. Members]

rose—

[Mr Clarke]

I will give shorter answers if I can. I will give way to a Member on my side of the House.

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

My right hon. and learned Friend has come against the rock of the special advocates. They have looked at this business and rejected it universally. They are the ones who are supposed to carry these court cases through and they do not like the proposal. I do not like it and, as this debate progresses, I think we will find that many more Members of this House do not like it either.

[Mr Clarke]

I thought we were doing all right with this Bill until the special advocates came out with their remarkable evidence to the Joint Committee on Human Rights. I agree that that got me into a lot of trouble. I do not understand why they take that ferocious view. As I have demonstrated before with plenty of quotations, they do win cases. One would think that they are powerless, but they do succeed. The judges accord to special advocates much more power of persuasion than they seem to accord to themselves, because judges want to have a special advocate to help them test the evidence when they are reaching their conclusion.

Of course, special advocates act on behalf of the claimants, as do most of the people who make these objections. I am not accusing them, because their motives are the highest and most honourable, but they have got into a frame of mind where they think that anything that is not advantageous to the claimant must be bad. Even at the height of my enthusiasm for human rights and the rule of law, I cannot get myself into that position. Claimants should be obliged to prove their case and I believe that special advocates are the most effective means that we have of testing the Government’s case on behalf of claimants.

[Dr Huppert]

The Minister made the excellent point that none of this would apply to criminal cases in which somebody’s liberty could be at risk, which is important. It is clear that there will not be closed information in such cases. Will he confirm whether civil habeas corpus cases will be covered? Could there be closed proceedings in such cases, which could affect somebody’s liberty?

[Mr Clarke]

My off-the-cuff reaction is to say no, but I confess that it is an uninformed one, so I think I ought to check that and return to it later.

[Several hon. Members]

rose—

[Mr Clarke]

I will give way once or twice more, then I must resume my speech, otherwise this will turn into a question-and-answer session. I must finish my speech, as the right hon. Member for Tooting did with great difficulty.

[Yasmin Qureshi (Bolton South East) (Lab)]

May I reiterate what the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) said? If special advocates, who are independent people and fully aware of cases such as those in question, are expressing reservations and think the provision is wrong, should the Government not take notice of that?

[Mr Clarke]

We have taken notice of it, but I do not understand why special advocates seem to be taking up the arguments of people who say that we should never allow anybody to consider the evidence in question. I never thought that PIIs were a perfect process, but the critics have suddenly decided they are now that we have brought forward CMPs. If there is a PII, the judge cannot take account of such evidence, claimants and the defence cannot use it, and the lawyers do not know about it. That is held up to me as a superior position to the one we are putting forward, which will mean that the judge can consider that evidence.

[Rory Stewart (Penrith and The Border) (Con)]

Will the Minister tell us in broad terms what concessions he has made since the Bill was conceived, and whether there are any further concessions that he can make to address any concerns?

[Mr Clarke]

I was about to move on to that point, having made the general case. Every time I make concessions, they are pocketed and there is a fresh set of demands. I have known that to happen before, but never on the same scale as with this Bill. I will try to explain that when I get on to the matter.

[Caroline Lucas]

I see that the Minister is about to get some advice from behind him on habeas corpus cases. The advice we have received is that they are regarded as civil actions, and that habeas corpus could therefore be at risk in future.

The Minister should not get carried away with the idea that everybody supports the change. Some parties, such as the Green party, do not. That will not surprise him, but the Liberal Democrat conference did not support it, either. It talked about it as a serious risk to public trust and confidence. Many people out there do not support the change or think it is necessary, and I have yet to hear any real argument as to why it is.

[Mr Clarke]

I respect the hon. Lady’s sincerity, and she represents those who are against the whole policy. I have met such people outside—to use a flippant phrase, some of my best friends are human rights lawyers, and I have met people who say that the whole idea of CMPs is so bad that it is a lesser evil to keep paying money to the ever-mounting number of people coming forward. That is a judgment for the House to make, but the three political parties do not contain many members who agree with that, and I do not think the public agree with it. I would prefer to see a judge test the evidence and come to a conclusion.

[Several hon. Members]

rose—

[Mr Clarke]

I will move on, but I will remember who I have not given way to.

I have been given advice on civil habeas corpus cases, and I will read it to the House. It says, “We can’t envisage any such cases.” I find that inconclusive, so I will make further inquiries. The question bowled me middle-stump, so I have some sympathy with the unfortunate lawyer in the Box who has had to decide what on earth we can say, and I think we ought to be allowed to go away and consider the matter.

On the point that my hon. Friend the Member for Penrith and The Border (Rory Stewart) made, Lord Woolf mentioned in his letter this morning that before the Committee stage, and again last week, the Government have tabled a lot of significant amendments that, in our opinion, meet every practical objection that has been made by the Joint Committee on Human Rights, the Opposition, my colleagues in the Liberal Democrats and my noble Friends, who defeated us several times. We accepted quite a lot of those defeats, which were improvements to the Bill.

I have tabled four more amendments today and added my name to two Opposition amendments. I considered the point about equality of arms; I think it is slightly overdone but Government Members have added their names to two Opposition amendments so that any party to the proceedings can apply for a declaration that there should be closed material procedure.

Let me remind hon. Members where we have got to. There has been enormous movement since the Green Paper, and quite a big movement while the Bill has proceeded through the House. The court may grant such an application and order a CMP if it—

[Several hon. Members]

rose—

[Mr Clarke]

Let me remind hon. Members of the position we have reached and then I will give way.

17:00

The court must be satisfied that the Secretary of State has considered whether to make, or advise another person to make, a PII claim for the material on which the application is based. Therefore, the Secretary of State must have considered that PII claim. We are not in favour—I will come back to this point—of the Secretary of State being put under an obligation to go through the whole PII process, which in some cases can take months, if it is obvious from a sample of the material that the case is likely to involve a CMP.

Now that the Bill has been amended, the tests the judge must apply before going into closed proceedings are clear. The judge must be satisfied that the material is relevant to the case and bears on issues that the judge is being asked to decide on. Secondly, the judge must be satisfied that the material could damage the interests of national security. A case cannot be contemplated for closed proceedings until the judge is satisfied on that point. Thirdly, the judge must be satisfied that a CMP would be in the interests of the fair and effective administration of justice—the proper way a British judge should try the case.

Those three conditions are pretty wide and they have to be satisfied. If the judge, exercising the widest possible consideration, is satisfied that those three conditions have been met, he may allow a CMP. We have removed the wording that he “must” allow a CMP, so the idea that this decision is not under the control of the judge strikes me as totally fanciful. If a CMP is being considered, the only way it will be workable is if a judge looks at a sample of the material to see whether those three conditions are satisfied. He may then order a CMP.

In a CMP a judge will hear all the material, which can amount to thousands of documents. During that time, when the special advocate is challenging and going through the case, the court is obliged to keep the CMP under review. Again, we have given the judge the power to revoke the CMP at any time. Indeed, the court has a duty to revoke a CMP following the pre-disclosure exercise if it feels that the CMP is no longer in the interests of the fair and effective administration of justice. As Lord Woolf has said, the changes the Government have made put the judge in complete control of whether a CMP can be granted and whether it will continue or be revoked—I could add more but I will not because I have started to give way again. The judge also decides how much of the case will go into open proceedings, how much of a gist can be given to the defendants, and how much can go into open proceedings as long as certain documents are redacted. Of course, the judge will have been informed by evidence and heard it challenged, and will then continue to the rest of the proceedings.

If we started like that, Lord knows where we would be now given the amendments we were facing—I cannot imagine. Some of this is unnecessary because I think a British judge would want to hold open proceedings. People will have difficulty persuading a British judge that it is sensible to go to closed proceedings. The idea that we need a whole lot of amendments that put fresh conditions on the judge, fresh questions for them to ask, and fresh, expensive and long processes to go through, is just an attempt to thwart CMPs. The Bill contains every protection because we have amended it yet again after consideration by the Joint Committee on Human Rights and the Intelligence and Security Committee.

[Zac Goldsmith (Richmond Park) (Con)]

I welcome my right hon. and learned Friend’s comments. Will he tell the House whether there is a clear and understood definition of the term “national security”?

[Mr Clarke]

There is no definition, because all attempts to define it have got one into worse difficulties.

It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.

We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.

[Mr George Howarth]

Is not national security rather like reasonable doubt—two well understood English words, as a judge advised the jury in a trial the other week?

[Mr Clarke]

Amendments have been tabled to Bills of this kind to try to define the concept, but that leads to more trouble than it is worth. I entirely agree with the right hon. Gentleman that reasonable doubt is a very good comparison.

[Sir Malcolm Rifkind]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second. I am sorry not to give way to the Chairman of the Committee at the moment, but I will before I finish.

I think I have made my point that people are grasping at the straws that keen human rights lawyers have presented to the critics of CMP, and trying to bring in a process to prevent them from happening. That would be the effect of most of the amendments. We have accepted the spirit of the JCHR’s amendments, and we have addressed the questions on unintended consequences.

Let us consider amendment 30 and the Wiley balance. I have just mentioned the unfettered discretion that we are giving to judges. Should we add to that discretion a confinement so that a judge would have to apply what is known as the Wiley balance, which is used in PII? I will not repeat the arguments used by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the Intelligence and Security Committee and, I think, the right hon. Member for Salford and Eccles. PII is not the same.

The amendment that the Opposition have been persuaded to table is not actually about the Wiley balance. Whoever drafted it has realised that that would not be quite good enough for their purposes, so they have altered it by adding the words “fair” and “open”. I do not understand how, having decided that national security would be at risk and that that would be relevant to the issues, and that such a measure would be necessary for the fair administration of justice, someone might then decide that they preferred open justice and that the evidence should be given in public anyway. That is a complete non sequitur, in a way. It would be slightly absurd to do that. It would be like saying to the judge, “If you agreed with the Green party and were against the policies in the Bill in the first place, you can now throw everything out anyway because you need to consider whether you would prefer open justice, after those three conditions have been satisfied.” That would be a slight non sequitur, and it is also a bit deceptive—not deliberately; I am not accusing anyone of acting improperly—to describe this proposal as the Wiley balance. It is the Wiley balance with bits added, which some ingenious lawyer has come up with to try to put a spoke in the wheels.

[Mr Andrew Tyrie (Chichester) (Con)]

I am very grateful indeed, in the circumstances, to the Minister for giving way. Did I hear him correctly? Perhaps I will give him the opportunity to correct the suggestion, which I think he pretty much made a moment ago, that the remaining opposition to the Bill has been got up by a few human rights lawyers. Will he explain, which he has still failed to do, why the only people who really understand the system—the people who have experience both of PII and CMPs; that is, the special advocates—have concluded absolutely clearly and unequivocally:

“The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”?

[Mr Clarke]

I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.

We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.

Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.

The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.

[Mr Julian Brazier (Canterbury) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second.

There is a serious risk, in our opinion and in the opinion of those who have considered the drafting, that it will introduce a huge, expensive and discouraging process. David Anderson, the independent reviewer of terrorism legislation, has described this sort of clause as requiring the court to bang its head against a brick wall. I think the Lords Constitution Committee also said that it did not want full PII. The hon. Member for Hammersmith (Mr Slaughter), who led for the Opposition, said this:

“None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed”.––[Official Report, Justice and Security (Lords) Public Bill Committee, 5 February 2013; c. 167.]

We are resisting amendment 31 because we think ingenious lawyers will use the argument that we have to settle down to a few years of process and paperwork to satisfy the requirement exhaustively to consider every other possible way of trying the case.

[Sadiq Khan]

Does the Minister accept that good judges will throw out frivolous applications by ingenious lawyers? If he is concerned about judges spending too much time considering documents, why does Government amendment 47 put the same obligation on the Secretary of State to consider PII, which we are seeking to put on the judge? All we are asking is that the judge considers PII, and the Government amendment requires the Secretary of State to consider it. Rather than the defendant in a claim having to consider, why not the judge?

[Mr Clarke]

Let us not make this a competition about which of us most trusts British judges to make reasonably sensible decisions. I have just described how we have put the whole thing in the hands of the judge, and I think that the right hon. Gentleman agrees that a British judge will instinctively want an open hearing and will have to be persuaded to go closed, and he will only do so as a last resort—to use a colloquial term—because his or her preference will be for open justice. There would have to be a very compelling reason for going closed.

17:15

That is the trouble with the amendments. I do not say they are all wicked, but they are designed, I think, to enable people to argue that it is not good enough just for the judge to decide that the tests are settled. They could argue that the judge has to go through an exhaustive procedure and consider every other possible alternative before going ahead. I do not see what on earth that would add. It would insert into the Bill what is almost a colloquial phrase. Whoever drafted it thought, “It’s worth a shot. Perhaps we can get the full process gone through before entering the closed process.”

[Patrick Mercer (Newark) (Con)]

On a wider point, has my right hon. and learned Friend thought how much comfort this will give to their cause, in the world of propaganda, when CMPs are used against terrorists?

[Mr Clarke]

I have, but with the greatest respect to my hon. Friend’s expertise in this area, I must say that one of the things that most troubles me, as the Minister enthusiastically in charge of the Bill, is not just the need to save the money or the irritation of being unable to defend claims, but the considerable damage done to the reputation of our security services because they are unable to defend themselves. The House always insists on being persuaded that the security forces abide by human rights and do not go in for malpractice or unlawful rendition and so on, but their inability to defend themselves against allegations that they have done so is undoubtedly used by our enemies against our security services, and they are very conscious of it—as are our allies and those with whom we co-operate in the security field.

[Several hon. Members]

rose—

[Mr Clarke]

In order to avoid losing the thread—as far as there is one—of the Opposition’s amendment, I will make some progress.

Amendment 38 would allow the court to order the disclosure of sensitive material, notwithstanding the damage that would be caused to national security, even if the CMP would have been fair without the disclosure. That would make the Bill completely ineffective from the point of view of the main policy, on which we are all agreed, and would give the courts the sort of power that prompted our allies’ concerns following the Binyam Mohamed case. It would seem to allow the judge to look at some material, determine that it was national security-sensitive but then say that there were wider considerations and disclose it anyway. Of course, if such a disclosure was ordered, the Government would have to withdraw from the case and seek to avoid further disclosure in claims for damages.

[Several hon. Members]

rose—

[Mr Clarke]

I must conclude. I apologise to those distinguished Members to whom I have not given way.

I remind Members of the extraordinarily important objectives that we have for the Bill and which the Government’s amendments support. I do not think that the Opposition wish to destroy the policy of the Bill, but they have tabled amendments that would have that effect. The Bill will ensure that the increasing number of civil claims brought against the Government alleging British involvement in kidnap and torture are for the first time fully examined by the courts and that the agencies are better held to account for their actions both by Parliament, through the Intelligence and Security Committee, and in the courts.

The Bill will enable us to reassure the Heads of State of our closest intelligence-sharing partners that we will keep their secrets. The fact that we cannot do this at the moment has already led to the US putting measures in place restricting intelligence exchange and has seriously undermined confidence among our key allies. As I have already mentioned, the Bill will also stop us having to make unnecessary payouts to people who have not proved their case and reduce the risk of British taxpayers’ money being used to finance terrorism.

We have revised the Bill as far as we can. We all agree on the rule of law and with the principles of justice in this country, but I invite the House to apply a modicum of common sense and a sense of national security to its considerations. We have debated this endlessly. Never can a Government have been quite so responsive to the points put to them, and I fear that I must resist the further pressure.

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure, and it is certainly a challenge, to follow the Minister without Portfolio.

On Second Reading, I welcomed the improvements that had been made by the House of Lords, but expressed the view that more significant improvements were required. I hoped that the Bill would be amended in Committee to make it compatible with the basic requirements of the rule of law, fairness and open justice, which, of course, the whole House would wish to endorse. Regrettably, however, the amendments made by the Government in Committee have removed or watered down many of the improvements made in the other place.

In an earlier report on the Bill, the Joint Committee on Human Rights, which I have the honour of chairing, considered carefully whether the Government’s amendments gave effect to its recommendations. In its second report, published last week, it reached the clear conclusion that they did not, and recommended further amendments. The day after we agreed our report, the Government tabled further amendments. I think—I choose my words carefully—that that was regrettable. We would have liked to scrutinise those amendments properly. The Minister, however, told the Daily Mail that the Government had now met every sensible legal objection that there could be to the Bill. I welcome some of the latest Government amendments, as does my Committee, but I must add that they meet only one of the seven main concerns expressed by the Committee in the report published last week.

Let me deal first with equality of arms in the ability to apply for a CMP. We welcome and support the Government’s amendment, which is the only one that gives effect to a recommendation in last week’s report. If we are to have CMPs in civil proceedings, it is vital for individuals such as torture victims who are bringing cases against the Government to have the same opportunity as the Government to apply for them, but how does the Minister propose to ensure that such claimants are aware that a CMP might help their case? Can he reassure us that special advocates will be appointed whenever the Government apply for sensitive national security material to be excluded from a case on grounds of public interest immunity, and also that those advocates will be able to communicate to excluded parties the fact that a CMP might help their case? I think that those are both very important questions.

Let me now deal with judicial balancing at the “gateway”—the so-called Wiley balance, which has already been discussed a great deal today. I support the amendment proposed by the shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan). In fact, I shall be supporting quite a few of his amendments, not because of any party loyalty but because he is supporting my Committee’s recommendations.

The Government’s amendments removed from the Bill the Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. That important safeguard had been inserted by the House of Lords, following a recommendation from my Committee. As the Committee explained in its report, the purpose of our recommended amendment inserting the Wiley balance was to ensure that the court considered the public interest in the fair and open administration of justice.

[Michael Ellis (Northampton North) (Con)]

May I ask whether the Joint Committee also considered the human rights of society more widely, including the right not to see millions of pounds of taxpayers’ money given to undesirable elements and individuals because cases must be settled immediately rather than explored properly, evidentially, through the courts?

[Dr Francis]

I welcome the hon. Gentleman’s point. These are very important issues, and the Committee was cognisant of them.

To return to the point I was making, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. By deleting the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and reinstating the Wiley balance as a precondition for a CMP, the amendment would restore a crucial safeguard for open justice.

On last resort, I support the amendment tabled by the shadow Secretary of State for Justice, which would give effect to my Committee’s recommendation. The Committee, in its report last week, explained why it does not accept the Government’s reasons for removing the “last resort” amendments made by the House of Lords, which are based on a misunderstanding of the effect of the provisions. The Government’s commitment to ensuring that CMPs are available only in those cases where they are necessary is most welcome. However, in order to give effect to that intention the Bill must be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.

The requirement that the court consider whether a claim for PII could have been made must also be reinstated. The Government’s latest amendment, which requires the court to consider whether the party applying for a CMP considered applying for PII, does not go far enough, because it does not require the court itself to consider whether PII is a suitable alternative to a CMP.

[Mr Kenneth Clarke]

As I have already argued, that sounds as though it is demanding that both the Secretary of State and the court go through the full process of PII before even getting on to applying for a CMP. From what the hon. Gentleman is saying, it sounds as though that is exactly what the Committee is contemplating, but how can that be justifiable when all the people concerned in some of these cases will rapidly come to the conclusion that they are wasting time, money and effort on a totally unnecessary exercise and it would obviously be more sensible to go into a CMP and consider the nature of the evidence?

[Dr Francis]

I am sure that—

[Sadiq Khan]

On that point, will my hon. Friend give way?

[Dr Francis]

Yes.

[Sadiq Khan]

I think that the Minister without Portfolio is in danger of not understanding his own Bill or the amendments. The amendment would simply require the court to “consider” whether a claim for PII could have been made in relation to the material. That is the same word used in Government amendment 47, which proposed that the Secretary of State must consider whether PII should be used.

[Dr Francis]

My right hon. Friend has explained that better than I could.

I have a question for the Minister, if he will listen to it, about the effect of the Bill on arrangements known as confidentiality rings. Will he repeat to the House the unequivocal reassurance he gave my Committee that the Bill, as it stands, makes no difference to confidentiality rings, that they will remain available under the Bill as they are now, and that the Government have no intention of taking away the possibility of such arrangements being used as an alternative to CMPs? I am not sure whether he was listening to that, but no doubt his supporters and officials can assist him later.

On the question of judicial balancing in the CMP, I again support the amendment tabled by the shadow Secretary of State. It would give effect to my Committee’s recommendation that the Bill be amended to ensure that a full judicial balancing of interests always takes place within the CMP, weighing the public interest in the fair and open administration of justice against the likely degree of harm to the interests of national security when deciding which material should be heard in closed session and which in open session. My Committee’s report explains why express provision for judicial balancing of interests needs to take place within a CMP. It is essential to ensure that the judges have the discretion they require to ensure that the Bill does not create unfairness.

Finally, on the question of gisting, I support the shadow Justice Secretary’s amendment, which, once again, would give effect to my Committee’s recommendation that this crucial safeguard be included in the legislation. On Second Reading, I said that the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement: a requirement that the party excluded from the courtroom must be given a summary of the closed material that is sufficient to enable him to give effective instructions to his lawyers and the special advocate who represents him in his absence. The special advocates have forcefully repeated that view in their most recent submission to my Committee. The courts have held that such a requirement is necessary in order for the legislation to be compatible with the right to a fair hearing, and the House should make it absolutely clear that that is what it intends, by writing this safeguard into the Bill.

17:30

I hope to be called later this evening to make a speech on annual renewal. On behalf of the Joint Committee on Human Rights, I thank everyone who has been contributing to this debate, because this is a crucial matter and we must all take it very seriously. I, for one, am grateful to have the opportunity to speak this evening.

[Mr Tyrie]

It is rare that I find myself agreeing with the lion’s share of what Opposition Members are saying and not agreeing with much that I have heard from my Front-Bench team. This is particularly unusual because of who has been speaking from the Dispatch Box. I normally agree with a great deal of what my right hon. and learned Friend the Minister without Portfolio says, but I cannot agree with him tonight.

The amendments on closed material procedures may look technical but they are really about the kind of society we want to live in: they are about whether people can get to hear the case that is being made against them; they are about whether we can keep legal safeguards that we have had for generations; they are about whether we are committed to finding out how much Britain has facilitated the United States’ programme of rendition—kidnap and, in some cases, torture; and, above all, they are about what values this country is seeking to espouse and export.

Amendments 30, 31 and 34 would take us some way in the right direction, and I will be voting for them. Amendments 31 and 34 would ensure that CMP is used at the discretion of a judge only as a last resort and only if obtaining justice is impossible by other means. For the sake of clarity, let me say that that is certainly not what the Government originally intended. Clause 6(5) of their original Bill required only that

“the Secretary of State must consider whether to make…a claim for public interest immunity”

before making an application for a CMP. A moment’s thought can tell us that that was almost worthless, as I believe the Government knew right from the start; all the Secretary of State would have to do would be to think about this matter, and he could do that in the bath if he so chose.

The House of Lords rescued matters, adding another provision requiring the judge to consider whether a PII “could have been made”. That meant that the court would be required to see whether a fair trial would be possible using PII, and so it would be up to the judge, not the Secretary of State, to decide whether PII should apply. We need to be mindful—this point has not been raised today—that the Executive, in general, and Secretaries of State, in particular, advised by officials, have interests of their own to serve. Foolishly, the Government scrapped that sensible House of Lords provision in Committee and they even scrapped the then clause 6(5), which would have required a Secretary of State at least to consider a PII.

The Government now intend to replace all that with their amendment 47, about which there has just been an exchange. It will provide that before making an order for a CMP the judge must be “satisfied” that the Secretary of State has “considered” making a CMP application. How, in a secret area, consideration by the Secretary of State would really be demonstrated is still unclear. Earlier the Minister said that we do not know exactly what effect this new process will have. No doubt officials will be able to provide suitable documentation to the Secretary of State in order for him to make that judgment, but I am not yet convinced that he will not be able to consider that in the bath as well. In other words, the discretion and control will lie fully not with the judge, as Lord Woolf wrongly supposes it will in his letter in The Times, but to a significant extent with the Secretary of State.

We have been told several times, and I have also been told in correspondence with the Minister, that this is a crucial area of the Bill on which further concessions would damage the interests of both justice and security. It is worth pointing out that on this crucial issue the Government have already held three incompatible positions: first, that the Secretary of State must think about PII; then, after Committee, that the Secretary of State should not even think about PII; and now, if amendment 47 is accepted, that the Secretary of State must tell the judge that he has thought very carefully about PII. Frankly, if this were not so serious an issue, all this chopping and changing would look slightly comical.

Amendment 30 is equally important. It would enable the judge to exercise the discretion he or she has now to balance the interests of justice against those of national security in determining what evidence should be disclosed. That is what is known as the Wiley balancing test, which has been discussed and is supported by the JCHR and a large proportion of the legal profession. It is important to be clear that that should not mean that judges will permit disclosure of information that would prejudice our security. I have asked for, but have not yet been told of, any case in which a judge has made that mistake under PII so far. Judges might not be perfect, but so far they have done a very good job of protecting our security and balancing security with justice.

[Mr Brazier]

Will my hon. Friend give way?

[Mr Tyrie]

I am concluding, if my hon. Friend will forgive me.

For those reasons, I shall support amendments 30, 31 and 34. In my view, they give the minimum necessary judicial discretion to the court.

[Hazel Blears]

I, too, intend to speak briefly as I know that a range of Members want to contribute.

My speech follows that of the hon. Member for Chichester (Mr Tyrie) and I have the greatest respect for his point of view on this issue, for the depth of his knowledge and for how he has studied these matters. The sense in the House is that people hold varying views which, in many cases, cross party lines. People feel strongly about trying to strike the right balance between liberty and security, which has been the subject of many of our previous debates.

It is right that these matters should be controversial, because they go to the heart of our legal system, protecting the rights of applicants and respondents, ensuring that the role of the state is in the proper place to hold the balance between parties, and trying to ensure that our justice system retains its respect and integrity across the world. That balance is difficult to draw and is never easy to achieve, and I say that as the Minister with responsibility for counter-terrorism who took the controversial legislation on control orders through the House. We debated them until 5 am in one of our very rare all-night sittings, which was for me evidence of how strongly people felt about these issues and how much they wanted to protect the integrity of our legal system. I share that desire.

The Bill has been debated at length and the issues have been debated in great depth. It is perhaps almost otiose to be debating them again, but a few points need to be made.

We must not forget why we are debating the Bill. If we did not need to debate it, none of us would want to introduce it. Everybody in this House and in the country believes in the British system of open justice, an adversarial system in which evidence is brought into open court and tested by the parties, allowing the judge to deliberate on the evidence and make a judgment.

We are in this position for two reasons. First, legitimate concerns have been expressed by our intelligence liaison partners, particularly in the United States of America, about the breach of the control principle for intelligence, which has put sources, techniques and capabilities at risk. That is the issue of national security, which is very much about the assets that are at risk. I am delighted that the Norwich Pharmacal provisions have gone through with agreement on both sides, which has been extremely positive, but concerns nevertheless remain about the possibility of information being disclosed in open court proceedings that could damage our intelligence relationships. That is the first reason why we are debating this issue.

The second reason is that we have seen an increasing number of claims of unlawful detention and allegations of mistreatment or torture by the security services against people who have been held in a range of different circumstances. Those allegations amount to more than 20 outstanding cases and the number is likely to increase if there is a jurisdiction within which such claims can be ventilated freely. The position has been that many of those claims have had to be settled because the evidence necessary to prove the case either way impinges on national security. That is why we have seen payments made to some claimants without having the opportunity to decide whether their claims were well founded as the evidence has not been put into a judicial setting.

I feel particularly strongly about this matter. If the security agencies have been conducting operations in a way that falls outside our framework of human rights, I want those issues to be put before a court and to be litigated. The fact that they cannot be goes to the heart of the reputation of our intelligence services. People will always say, “Well, you are settling that case because something in it was well founded. That is why you are prepared to pay £2 million, £3 million or £4 million to avoid litigation in our courts.” I want that information; I want to know what happened. Equally, if these claims are unfounded and unfair allegations are being brought against our security services, I want them to be able to defend themselves and the good name and integrity of our intelligence agencies.

[Yasmin Qureshi]

Will my right hon. Friend take it from me that using the concept of national security as something to hide behind is not right either? This has been used by states all too often. We know from our history that things can be hidden behind national security issues and the truth does not come out.

[Hazel Blears]

My hon. Friend makes my case for me. If she wanted the information about these matters to be put before a court for a judge to decide, she would support the idea that, in a small number of cases, closed material procedures are necessary. I am afraid that I must tell her that in some circumstances if the secrets we hold, the capabilities, the agents and the capacities we have were to be put in open court, the security of our nation would be threatened. If she does not accept that—I genuinely say this with respect—she has no appreciation of the importance of those secrets to our national security.

[Yasmin Qureshi]

That is completely wrong. As one who has spent many years prosecuting, dealing with issues such as PII, making applications in front of judges relating to informers, issuing evidence for public interest immunity applications and being sensitive to issues on behalf of victims, I can assure my right hon. Friend that the suggestion that we do not appreciate these things is not right. I am saying that it is possible to have these discussions and to find out what is happening. Special advocates, for example, who are experts and independent people belonging neither to the defence nor to the prosecution, have said that these particular procedures in civil cases are completely inappropriate. A criminal trial is a different matter, but these procedures are not right in civil cases.

[Hazel Blears]

It may well be that some people take a principled position that paying out millions of pounds is a price worth paying if they do not want to have closed proceedings. That is a perfectly legitimate place to be, but it does not happen to be a situation with which I agree. My hon. Friend talks, as many Members do, about PII, which is about excluding information; I want to be in a position where we maximise the inclusion of information and bring it before the judge.

[Mr Tyrie]

The right hon. Lady and a number of others have fallen into the same trap as did the Advocate-General in the House of Lords, and the point was decisively knocked down by Lord Pannick when he said that the Advocate-General

“wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise…that he suggests a CMP is preferable…The reality…is that the court has an ability applying PII to devise means by which security and fairness can be reconciled”—[Official Report, House of Lords, 19 June 2012; Vol. 737, c. 1694.]—

by the use of other mechanisms. He then listed what they were. Because I am making an intervention, I will not list them, but they are obviously to do with redaction, the anonymising of witnesses and the use of confidentiality rings. There has been a serious misrepresentation of the effects of PII.

17:45

[Hazel Blears]

I am sure the hon. Gentleman would make an amazingly creative lawyer, if he is not already one. By any interpretation that was a list of the items that could be included. I am probably in good company if I am in agreement with the Advocate-General. There is fairly overwhelming evidence that the list that the hon. Gentleman tried not to give would not be suitable for some cases where a huge amount of the information impinges on national security.

[Dr Julian Lewis]

Does the right hon. Lady accept that if sensitive material is redacted under PII, that may be the very sensitive material—the secret source, the secret technique or whatever—which is the thing that proves the Government’s case? Therefore it is not good enough to say that PII could be used with redactions, because the redactions themselves may be the key component of the evidence that the Government need to present.

[Hazel Blears]

As ever, my colleague on the Intelligence and Security Committee makes the point in straightforward, direct and proper terms. My understanding is that the Opposition accept that in a small number of cases it will be necessary to have closed material proceedings and that PII does not meet the case in every set of circumstances.

[Sir Richard Shepherd]

On the point that the right hon. Lady was making in respect of balance, there is another element that is not often discussed but which is surely central to our system of justice—the openness of it and the confidence, therefore, that the general public can have in due process. That is what this debate obscures. I grew up with Matrix Churchill, and I think the right hon. Lady’s time in Parliament coincided with that. Those are the worries that inform part of the anxiety about the Bill.

[Hazel Blears]

The hon. Gentleman, as ever, speaks with passion on these issues and I respect his point of view. I was a lawyer a long time ago and I understand how important it is to have open justice, but it is also important to get the balance right.

Amendment 30 is about the Wiley balance. I have some difficulty with the amendment because I feel that the Wiley balance is perfectly appropriate for PII, because it is used to decide whether to include or exclude material and whether or not there should be an open hearing. It strikes me that in relation to closed material proceedings there is a more complex and nuanced decision to make which contains different factors. I am keen that we get a balance and that we get the balance right, but I am convinced that the Wiley balance is one that we can simply transpose into the new legislation and that it will be effective.

Amendments 34 and 37 are about whether every other method has to be exhausted before we can get to a closed material proceeding. I am disappointed that there is not more agreement across the House on this. We all want to see whether cases can be dealt with in another way, because closed material proceedings should be the absolute minimum—an irreducible core, as I put it, of cases. I wonder whether the determination could be made by the Secretary of State, having considered whether PII would be suitable, and whether there could be some mechanism for the court to exercise a scrutiny function on whether the Secretary of State’s consideration had been more than cursory.

There will be concerns if the Secretary of State just ticks a box and says, “I’ve considered PII, in my bath”—as the hon. Member for Chichester said—rather than going through a proper process. I would like to see, whether or not we end up in ping-pong with the Lords, something in the Bill that says that the court has to take a proper look at the Secretary of State’s consideration of PII. That would not be exhaustive, but would have some substance to it. I ask the Minister to consider taking that into account.

[Mr Kenneth Clarke]

The judge will have to be satisfied that the Secretary of State has considered the matter. He will not take that as just having thought about it in the bath; that is not how the judge will test whether the Secretary of State has seriously considered it. The judge has such a wide discretion that he could decide that in the fair and effective administration of justice, for some peculiar reason the case should be PII; he should not be listening to a CMP application. That would be one reason for using his discretion. Having listened to the two principal advocates of these further tests, I think they are advocating that the court and the Secretary of State should go through the whole process of PII first. That is not what the Opposition intend, but that is what their amendments would do. The Government have met the right hon. Lady’s case perfectly satisfactorily in the Bill.

[Hazel Blears]

I hear what the right hon. and learned Gentleman says. He has been very inventive and creative in trying to table amendments, and it would not be beyond him to put something in the Bill that reassured people that there was a proper check on whether the Secretary of State had properly considered whether other methods could be used. I leave him to reflect on that.

Amendment 70 seeks to add inquests to the Bill. It originates from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and he will speak to it with his depth of knowledge, experience and appreciation of the issue, and I simply say that I will support him on it 100%.

It is important in a justice system for people to have sufficient notification of the circumstance to be able to give instructions, but at the moment the bar is set a little high, because there may well be circumstances in which the gisting goes right to the heart of national security. Therefore, by giving a gist that is wide enough to enable instructions to be given, the national security case is given away. Again I wonder whether something could be included about there being a presumption in favour of gisting that could be subject to rebuttal in circumstances that merited it. I would feel more reassured if there were something along those lines. The process adopted so far has been an attempt to try to get some agreement and consensus on these issues. It is difficult to do so, but the issues at stake are so important, both for our national security and for the integrity of our justice system, that we need to keep trying to see whether, on a couple of those issues, even at this stage, there is room for a little more movement to get us to a better place.

[Mr David Davis]

It is a particular pleasure to follow the right hon. Member for Salford and Eccles (Hazel Blears). Her speech was well thought through and persuasive. We do not always agree on these issues, but on one aspect she persuaded me, and I shall say in a minute what that was. In this area of argument, which goes right to the heart of what makes British justice special and right to the heart of our national security, we are all inclined sometimes to put things rather too heavily in black and white. I have every sympathy with the agencies that are trying to preserve their own security. They have plenty of threats: past agencies, the David Shaylers, the Richard Tomlinsons, leaking their information, even Ministers—I remember that Ted Rowlands once in the House gave away some Crown jewels—and most ironically of all, Washington. Given the genesis of the Bill, some of the biggest leaks relate to our biggest ally, whether it is Pentagon papers four years ago or, only two months ago, what sounds from the British papers to be the putting at risk of the life of an Anglo-Saudi agent whom it used in one of its operations and then talked about afterwards. Nobody, certainly not I, would challenge the right of the agencies to preserve their own proper security—I stress “proper security”.

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

My right hon. Friend mentions how things have changed over 40 years and how things have happened. It is clear from this debate how things have moved on. The clandestine community is very different from what it was in the past. It is now scrutinised in a way that has never been done before. We can now mention John Sawyer and Jonathan Evans, names that could never even be mentioned in the Chamber, let alone in MI5 or MI6. Will he concede that we are now having to look at a new level of scrutiny, and that that is why these CMPs have to be put in place. Forty years ago, we could not even discuss the matter.

[Mr Davis]

As one of the two junior Ministers who took the Secret Intelligence Service Bill through the House and asked the then head of MI6 whether he really meant this, I can take his point. But the simple truth is that we have to live up to those standards of accountability, and that means open justice wherever we can have it.

One of the interesting divides that has taken place in all this is almost a generational one. We have had closed material procedures only since—

[Mr Jack Straw (Blackburn) (Lab)]

1997.

[Mr Davis]

Yes, 1997; for only a decade or two. A generation of special advocates have taken a strong stance on this, and they have taken a different stance from everybody else because they have experienced both sorts of procedure. Nearly all of them have personally understood the closed material procedure and the PII procedure, and most of them know both procedures inside out. One of the things they argue—a point made by my hon. Friend the Member for Chichester (Mr Tyrie) in his brilliant speech, every word of which I agreed with—is that PII has been misrepresented. Any special advocate will say that PII is a much more complex, judge-created, judge-evolved process than is being represented. Of course there can be simple blocking; of course, in addition, there can be redaction; of course there can be circles of confidentiality; of course there can be in-camera hearings. The Minister without Portfolio rather dismissively said that this is the system that gave us arms to Iraq. Even in that process, which involved at least one ex-Minister and one Minister in the House today, early on in the development of PII we saw one category of certificate refused, one category accepted and one category heavily redacted. That gave the court enough information to make Alan Clark face the interrogation in which he came out with those famous words “economical with the actualité”, which collapsed the case because the prosecution recommended an acquittal on the basis of the evidence.

[Yasmin Qureshi]

Just to continue to emphasise the PII point that the right hon. Gentleman makes, he will be aware that at this moment and for many years in our country, covert operations have been carried out evidence from which has been used to convict people, yet the methodology used, where the operatives were and the locations were always kept secret, and that was part of the PII application. PII is not about excluding evidence, it is about including evidence, but not letting the other side know what is adduced. The majority of people seem to be working on the totally wrong basis of what a PII is.

[Mr Davis]

The hon. Lady is of course right, but let me come to the point that I was driving towards, which is that none of the systems that we are talking about is perfect. PII clearly has weaknesses. Everyone who has spoken has said something to that effect, and the hon. Lady was particularly correct about that; there are weaknesses to PII. We should not accept that that is the perfect outcome either.

[Mr Kenneth Clarke]

My right hon. Friend rightly says that in PII, because people do not like excluding all the evidence, there is a perfectly legitimate argument about how much we can gist and how much can be redacted, and then it can be put into the open court. But everything that does not get there is entirely left out; it is not available to claimant, judge, lawyers or anybody else. In a CMP, exactly the same thing can be done, because the judge will be required to consider how much we can gist, how much we can redact, and what can be shared with the defendant. The only difference is that in a CMP, the evidence, including, as my right hon. Friend said, some things that might be absolutely key to the case that cannot unfortunately be disclosed, can be considered by the judge. PII shuts out all that which is not possible to gist. With a CMP, there can be all the gisting and redaction that one wants, but all the evidence is considered.

[Sir Malcolm Rifkind]

rose—

[Mr Davis]

I give way to my right hon. and learned Friend.

[Sir Malcolm Rifkind]

As a Minister who signed a PII certificate in the Matrix Churchill case and was vindicated by the Scott inquiry for having done so, may I say, yes, of course, some things can be permitted through PII? As my right hon. and learned Friend the Minister said, the real issues that would damage national security cannot be considered either by the judge or by anyone else. My right hon. and learned Friend perhaps does not appreciate that even when closed procedures may be approved by the court, once special advocates have been appointed, if the special advocates, having had access to the secret material, put forward a convincing case to the judge that some of that need not continue to be held under closed procedures but can be held in open court, the judge, if so persuaded, is perfectly free to do so. The special advocates themselves, unlike their clients, can put forward that argument, and have done so in immigration cases, and that point has not been mentioned in this debate so far.

18:00

[Mr Davis]

I do not dispute any of that; that is where I am coming to with respect to the attitude of the special advocates. Clearly, of the two they do not like CMPs, for reasons on which I am about to elaborate. That means not that CMPs should be impossible to use, but that restriction should be the order of the day.

The best outline of the weakness of closed material procedures came from Lord Justice Kerr, who effectively said—I am now desperately paraphrasing—that unchallenged evidence can be “misleading”, which was the word he used. That came up any number of times during the Lords debate from a number of lawyers. Helena Kennedy, for example, cited a case in which a tape recording of a conversation that appeared to incriminate a defendant was played in court. When the defendant heard it, he said, “I’m sorry, but I left after about five minutes.” People listened carefully and could hear the door opening and closing as he went. So a piece of evidence that appeared to be incredibly incriminating became not incriminating at all. David Anderson put a similar point to the Lords Committee when he was giving evidence.

The issue of challenge is important; it is critical to our judicial process—completely different from any other judicial process around the world. The challenge is vital. Without it, the judicial process is not operating properly. That is why we have to take on board what the special advocates say and effectively build it into the structure of the Bill—to create, as it were, a hierarchy. We have to go through that thought process.

I am cognisant of the point made by the Minister without Portfolio. We do not want a Minister to be pinned down for a year working on one PII. I am sure—indeed, I know from experience—that some of the Guantanamo cases are incredibly complicated and involve very many documents. I do not think it is beyond the ken of the House to achieve that.

I will support the Opposition’s amendment today, although I am open to argument if we can find better wording to get what we are trying for. I am talking about a hierarchy, a priority—first, open hearings; then the PII process, if that is appropriate; if it is not, CMPs in the final analysis. I agree with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) that the process should be more open than it currently is.

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

The right hon. Gentleman is making a characteristically interesting speech. He has referred several times to a hierarchy in relation to openness, in which he places PII above closed material procedure. I am sure that the House would be interested to know his rationale.

[Mr Davis]

All right, let me give the right hon. Gentleman an example. The question is whether or not there can be a challenge; if the evidence can be in court, it should be capable of being challenged. There is an example that goes back to 2006 relating to the current CMPs used in the Special Immigration Appeals Commission. I shall read from the Press Association release:

“A judge in a secret hearing has criticised the Home Office over contradictory MI5 intelligence in the trial of two terrorism suspects. The intelligence only came to light because—by chance—the same barrister was acting in both cases.

Mr Justice Newman said the ‘administration of justice’ had been put at risk in the trial of Algerian Abu Doha and a suspect known as MK…Both sets of contradictory evidence had come from MI5.”

There had been a false passport that was claimed to have been used by two different people in two different places at the same moment on the same day—clearly impossible. That became apparent only because the same barrister was acting as a special advocate in each case. The problem is that there was no process of challenge; if there had been, the contention would have been denied and struck out. As it was, both cases were struck down because they were clearly implausible. The process of challenge is vital.

For that reason, I am entirely with what the Joint Committee on Human Rights wants—gisting, if it is possible.

[Paul Goggins]

rose—

[Mr George Howarth]

rose—

[Mr Davis]

Forgive me, but I am just coming to an end.

The right hon. Member for Salford and Eccles was persuasive in arguing that if there is to be some sort of opt-out on gisting if things are really serious, only the judge should decide that. I take that point, and it is a good argument. There should be proper, explicit judicial balance in the decision to go to a CMP that takes into account all the interests of justice, and not just national security. There should be the argument of strict necessity; that is what I mean by the hierarchy. On that basis, the House could come to a conclusion in which we effectively have the best of all worlds.

[Mr Straw]

I begin by drawing the House’s attention to the fact that, along with Her Majesty’s Government and an official, I have been a defendant in civil actions brought by two Libyan nationals and their families— Mr al-Saadi, whose case was settled just before Christmas, and Mr Belhaj. In the case of Mr Belhaj, proceedings are still active; in the circumstances, I am sure the House will understand how constrained I have to be in respect of those matters at present. I hope to be able to say much more about the cases at an appropriate stage in future. However, I should make it clear that at all times, in all the positions that I occupied as a Secretary of State, I was scrupulous in seeking to carry out my duties in accordance with the law.

My purpose in rising to speak now is to explain why I believe that the Government’s formulation for the conditions for a closed material proceeding are to be preferred to those of the Opposition. However, I want to make two more general points to begin with.

First, the freedoms that we in this country take for granted are built on our system of justice, which is among the very best in the world. It is independent, fair and fearless—and it is transparent, for the very obvious but crucial reason that justice must not only be done, but be seen to be done. It follows that we should permit departures from that principle of openness only in the most exceptional circumstances.

Whenever Parliament has been asked to agree to having part of a court’s proceedings in camera or to having the identity of witnesses, or most seriously the evidence itself, withheld from one of the parties to the proceedings, it has scrutinised the legislation with the greatest care. It has nonetheless been convinced that, in some cases, the interests of justice do require such special procedures.

Thus in 2008, Parliament agreed, in the Criminal Evidence (Witness Anonymity) Act, new statutory procedures for the taking of anonymised evidence in criminal trials. That evidence has to be heard by the defendant and the jury, but its origin—the names involved and often the exact circumstances in which it came to be produced—is kept secret and away from the defendant.

More relevantly to today’s proceedings, in 1997 Parliament decided on a cross-party basis to establish the first arrangements for closed material proceedings in respect of persons whose deportation had been ordered on grounds of national security but where the evidence against them could not safely be disclosed to the deportee or their representatives.

I note what the special advocates have said, because we are all reluctant to see such a system operate, although it has to because it is better than any alternative. In the intervening period, that system has worked for the Special Immigration Appeals Commission, and worked reasonably well. The senior judges who preside at these proceedings, in SIAC, have shown themselves to be robustly independent. Of 37 substantive cases before SIAC since 2007, the tribunal—a senior judge with colleagues—has found against the Government in at least seven. The procedures in the Bill build on the 15 years’ experience of SIAC.

Secondly, I commend my right hon. Friend the Member for Tooting (Sadiq Khan) and his colleagues for the constructive approach that they have adopted towards the Bill. I spent 18 years on the Opposition Benches between 1979 and 1997 and then witnessed the Conservative Opposition during their 13 years on these Benches. The temptations on Oppositions to oppose in a destructive way are considerable, and so too are the pressures from outside on them to operate in that way. We in my party succumbed to those pressures too often in 1980s, and, I am afraid, so did the Conservative party on many occasions, including on Bills like this, during part of its 13 years in opposition.

By contrast, my right hon. Friend and his colleagues, from the outset of the publication of the Green Paper—I well remember his response to that a year and a half ago—have accepted, as he said in his opening remarks, that there may be circumstances in which closed material procedures have to be applied in civil cases, but argued that there should be greater safeguards in the Bill and, crucially, that the court, not the Secretary of State, should decide whether a CMP should operate in any particular case. As a result, the Bill has been significantly improved, and my right hon. Friend and his team can rightly claim considerable credit for that.

Let me turn to the key amendments 30 and 31 and the amendments to which they are linked. The amendments seek to reword clause 6(6) and to add a third condition. Thus the Government propose,

“The second condition is that it is the interests of fair and effective administration of justice”

to use a CMP, while the Opposition instead propose that the second condition should be a relative one—that

“the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.”

They also propose to add:

“The third condition is that a fair determination of the proceedings is not possible by any other means.”

As the Minister said, this is colloquially called the Wiley balance test. However, when I looked at the definition of the Wiley test I noted that the Joint Committee on Human Rights has turned it into something else. It is a test, but it should not be adorned with the phrase, “the Wiley test”, because it goes considerably further. I do not dispute anybody’s motives in dealing with this incredibly difficult issue. However, shifting the test, even if it were the accurate Wiley test in respect of PIIs, to CMPs has the defect of arguing by analogy. It is appropriate in PII cases but not in this regard.

We have had a great deal of elucidation. I commend—but do not, with respect, agree with—what the hon. Member for Chichester (Mr Tyrie) said about the uses of PIIs. I also accept the comments of the right hon. Member for Haltemprice and Howden (Mr Davis). During the nine years for which I was responsible for the various agencies, I quite frequently had to make applications to a court for a PII. Even in respect of marginal evidence, PIIs are hugely time-consuming. It is not like dealing with a letter to a Member of Parliament on an issue that one knows backwards where one can virtually top and tail it in one’s sleep. One has to read every single piece of evidence that one is certifying ought to be—in one’s own view, although it is a matter for the court—excluded on grounds of national security, or whatever the grounds may be. I accept the burden of what the right hon. Member for Haltemprice and Howden and the hon. Member for Chichester said. Yes, it is true—this was brought out by the court’s judgment in al-Rawi—that when the court receives an application for PII it is able not only to accept or reject it but to take a middle way—a third way, as it were—of gisting, confidentiality rings, and so on.

However, the profound difference in this regard is that ultimately, if the respondent party, which in civil cases is inevitably the Government—it is completely different in criminal cases, but this is not about criminal cases—do not like the decision that the court has come to, they have to decide not to contest the case at all. That is why there is a lacuna in the current arrangements, and that is the mother and father of this Bill. That does not apply in respect of CMPs, where the Government will not be able to use PIIs to exclude evidence as they can now, because the judge will say, “Hang on a second. Why are you applying to exclude evidence which is absolutely central to the case? You need to put it in, and I will decide, thank you very much, whether it should be kept completely secret or there ought to be some kind of gisting or summary of that evidence.” The right that accords to the state in respect of PII does not accord to it in respect of CMPs.

18:15

PIIs have taken on a life of their own, with some people having suddenly decided that they are a touchstone of British justice. They are being presented as though they are a better alternative than CMPs. I signed all the PIIs that I dealt with, as others in this House have had to, with a great burden on me and while looking at the evidence. Like anybody else, I did not just do what I was asked to do. Rule No. 1 to anybody in a ministerial position who wishes to survive is every day never to do that which they are asked to do but to make their own decisions. That is what I did, and I am still here. At the heart of PIIs is the application by the relevant Secretary of State to exclude evidence. The paradox is that the more sensitive and secret the evidence, and the more crucial it is to a case, the more likely a judge is to exclude it altogether rather than allow it to be gisted or summarised, and so the interests of justice are not served.

Interestingly, unless things have changed since I made PII applications, special advocates have no role in the PII process. Nobody challenges what the Secretary of State has done apart from the poor old judge, whereas in respect of applications for CMPs there will be special advocates acting like terriers, as we have seen from SIAC. As the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) said, if at any stage the special advocate believes that the CMP should not continue, he or she will make an application to the judge.

[Mr Ellwood]

The right hon. Gentleman said that he is still here, and I think that the House very much appreciates that given what he is offering to the debate with his experience. Does he agree that, as my hon. Friend the Member for New Forest East (Dr Lewis) said, PIIs offer an opportunity for judges to redact information that could otherwise be used in the processes proposed for CMPs, or for that argument to be put forward?

[Mr Straw]

Of course. Those of us with experience of SIAC will know that it too could be seen as a parody of a secret court. In SIAC cases, the chairman of the tribunal, who will be an experienced senior judge, issues a closed judgment with all the argument in it and a redacted judgment with a very great deal of evidence in it. The idea that it is—fortunately nobody in the Chamber has used the term, “a parody”—a secret court worthy of Kafka’s “The Trial” is, frankly, utter nonsense.

[Richard Fuller (Bedford) (Con)]

It is helpful for those of us who are amateurs with regard to these issues to benefit from the right hon. Gentleman’s judgment. He has referred a couple of times to the administration of SIAC. My understanding of and opposition to CMPs results from the case of a constituent who was subject to the restrictions of SIAC. His understanding of, and the way in which he was treated by, the criminal justice system and the impact of that form of justice on his physical and mental well-being are some of the reasons why I am emboldened to oppose the Government’s measures. Now that the right hon. Gentleman is no longer in office, has he had the opportunity to meet people who have been subject to CMPs in order to understand the implications that SIAC has had for their lives?

[Mr Straw]

Let us be clear that SIAC does not deal with criminal cases. There is no procedure in our system, north or south of the border—and nor should there ever be—whereby, in any criminal trial, somebody can be tried and lose their liberty without being able to hear all the evidence.

[Dr Huppert]

rose—

[Mr Straw]

I recommend that the hon. Gentleman not test me on the details of the Criminal Evidence (Witness Anonymity) Act 2008, because I know every part of it and why we had to go through with it.

[Dr Huppert]

I cannot resist the temptation. To amplify the point that was just made by the hon. Member for Bedford (Richard Fuller), does the right hon. Gentleman agree that in SIAC cases, as happened in control order cases, people’s liberty could be significantly curtailed without them knowing the evidence against them?

[Mr Straw]

Of course I do, and that was going to be my next point. No one is suggesting that SIAC deals with trivial matters. It deals with whether an individual should be deported on national security grounds, while the control order tribunals deal with restrictions of individuals’ liberty.

I have met one individual who was subject to a control order and will tell the hon. Member for Bedford (Richard Fuller) about the circumstances outside the Chamber. The heart of the issue is about protecting our national security. That has been discussed in abstract terms today, but what we are actually debating is how to protect the sources of information on which intelligence depends. These individuals are developed by our intelligence and security agencies and they place themselves at considerable risk. In essence, they provide information to the United Kingdom—as they would to a foreign intelligence agency—that they are not supposed to provide. Sometimes they betray their own Government or country. They are, by definition, giving away confidences and they do so for a variety of motives: some say that they are doing it for the highest of motives, which are that they fundamentally disagree with the system in which they are operating; some do it for the lowest of motives, because they have committed a criminal act and want some form of escape; and some are somewhere in between, in that they have high motives but they also want some money.

In every case, that information would simply dry up if the identity of that individual, or information leading to their identification, was compromised. That is the fundamental dilemma, and there is no way out of it unless we want to abandon our intelligence and security agencies. Let us remind ourselves—this is not scare- mongering; it happens to be true—that, had we abandoned those agencies, scores of serious atrocities would have killed our constituents and many others. If we had explained how we had ended up in such a situation by saying that information had to be provided in its entirety in open court in all circumstances, people would have said, “Thanks very much, but my relative, wife or child has just died.” That is the dilemma and it is not abstract—it is absolutely real.

[Jeremy Corbyn]

Will my right hon. Friend give way?

[Mr Straw]

I hope that my hon. Friend will allow me to make progress, because I have already used up a lot of time.

This leads me back—I will finish shortly—to the reason why, with great regret, I cannot support the endeavours of my hon. Friends on the Front Bench to set a relative test that

“the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.”

That could lead, inadvertently and unintentionally, to a situation in which a judge might decide that the identity of an agent or other crucial information about the work of our intelligence agencies needed to be disclosed in the interests of open justice. We have to accept that the justice under discussion is, by definition, not open. It cannot be—we cannot have it both ways. There is no dubiety about that. I understand why the test has been proposed, but it does not work.

Finally, many Members have reputations as liberals, including the Minister without Portfolio, the hon. Member for Chichester and many on the Liberal Benches. I have never sought that reputation, and nor has it been offered to me, but Lord Woolf, the former Lord Chief Justice, is someone of impeccable liberal credentials—he even lives in Barnes. He wrote in a letter to The Times that the Bill as drafted

“now ensures that we will retain our standards of general justice, while also putting an end to the blindfolding of judges in this small number of cases.”

To be frank, if it is good enough for the liberal Lord Woolf, it ought to be good enough for this House.

[Several hon. Members]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I ask Members to show some time restraint, because, as they can see, a lot of Members want to speak to the amendment.

[Dr Huppert]

It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw). Although I am not sure that we agree on everything, I think we do on some things. There have been some interesting discussions between Front and Back Benchers.

I want to focus on some of the amendments. I am pleased to see the recommendations of the Joint Committee on Human Rights, which I used to have the pleasure of serving on. I pushed a number of those proposals during the Bill’s Committee stage and we had interesting debates and votes on a range of things. I do not plan to go through every single aspect, because we rehearsed them thoroughly. I am delighted to see that a number of the amendments that I tabled and supported in Committee have come back.

I hope that the Minister will clarify the position on habeas corpus. Indeed, I would be happy to take an intervention from him, because it is a very important issue. I was happy with his clear answer of no. If he can stick to that, it would be fantastic; if not, we should be clear.

I welcome some of the Government’s good amendments. One that has not really been mentioned—it was tabled in the Lords and accepted by the Government—is that which changes “must” to “may”, allowing discretion to the judge, rather than the Minister. That is very welcome and has made a significant improvement. I am pleased that the Government have stuck to it.

I am also pleased that the Government have agreed to amendments on equality of arms to achieve true symmetry. They were recommended by the JCHR and I spoke to them at great length in the Bill Committee. We lost the vote, but I am glad that the Government have now come around to them. Symmetry is important, because one can think of a number of examples where an ex-employee of MI6 may not be able to raise publicly a document that is important to a case that they may wish to bring. In such circumstances, they may wish to have a CMP themselves so that the document can be debated without putting other things at risk. Such cases may be relatively rare, but ensuring pure symmetrical equality is absolutely the right thing to do.

I am also pleased to see reinstated, at least in the text of the Bill, the role of public interest immunity. There is a debate about whether it goes far enough and about what it does, but including it in the Bill is extremely good. I share the view of those who think that PII is not a perfect process. I do not like the secrecy involved, and there is certainly not a great case for it—we have seen, for example, some of the concerns in the Litvinenko case.

There is an issue with regard to last resort. I would like to see closed proceedings as a last resort. I do not think that this is entirely about openness; it is also about fairness and the principle that both sides should have the chance to see the same evidence. I think that it would be accepted everywhere that a CMP can never quite get to that point, because one person is not able to see everything. That is not a great situation.

[Simon Hughes]

May I reinforce the point that has been made to the Minister without Portfolio by Members from across the House? The Joint Committee on Human Rights did not argue for an exhaustive exploration of PII, but for an assessment by the court of whether PII would be a realistic and sensible option and, if not, for the court to move on and look at other things. The Minister has said that that would be reasonable, so I do not think that there is much between him and those of us who take the position of the Joint Committee. I hope that we can reach agreement on that, even if it does not happen tonight, because the Joint Committee was clear that what we are arguing for is not an extreme position, but a moderate, modest, sensible and pragmatic one.

18:30

[Dr Huppert]

None of us wants to see Ministers’ time sucked up for a year reading documents and signing them. That would not be in anybody’s interests.

Why do we believe in the concept of last resort? The Government have an advantage in these cases because they know what the evidence is and the other party does not. That is why we want more balanced processes to be tried first. That changes slightly if the other party has applied for the CMP. To take the case that I advanced earlier of an ex-employee who knows of a document, we should probably say that a CMP would be the preferred option for them, rather than allowing the Government to keep something away. We want a slight bias away from the Government—not a huge bias, but a slight one—to make up for their advantage of being able to see all the documents.

[Mr Kenneth Clarke]

On the hon. Gentleman’s point about the last resort, I am grateful that both the Labour party spokesman and the Liberals who have spoken so far have agreed with what we have said. We do not want a statutory provision that requires people to go through immense procedures to eliminate every other way of dealing with a case. Unfortunately, there are later Opposition amendments that would have that effect. It is very late in the day. In conversational terms, we are all agreed that closed proceedings are a last resort. We want closed proceedings only when national safety is in danger and where there is no other sensible way of trying the case. I will go away and consider the matter, but we are rather late in the proceedings. Of course, the rules of the court still have to be made and it may be possible to address the matter there. In practice, there is not much between us, because judges and lawyers will not want to go into closed proceedings other than as a last resort. What we do not want is to introduce a process that involves months of time and vast sums of money, the intention of which is really to stop anybody taking on a closed procedure at all.

[Dr Huppert]

I thank the Minister for saying that he will look more carefully at the matter. However late in the day it is, we would be grateful for any changes he could make that might take us in the direction of what has been suggested by the JCHR and others.

While the Minister is in the mood for looking at other issues, can he be absolutely clear about confidentiality rings? This matter was raised earlier, so I will not go into it. As was discussed in Committee, there is a change in the wording that has led to the impression that the test is about the material rather than the disclosure. I hope that it will be made very clear that there is no sense in which that would apply to confidentiality rings. I believe that Opposition amendment 28 is intended to explore that issue.

I look forward to supporting any of the amendments that would take us towards the proposals of the JCHR. I look forward to amendment 1 being debated and for any opportunity to test the will of the House on that issue.

I was surprised to see amendment 70 and I look forward to the explanation from the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am pleased that, owing to the influence of the Liberal Democrats, inquests were taken out of scope after being included in the original proposals. It is important, particularly at an inquest, that the family knows the grounds for the conclusion. It would be very unsatisfactory for people who had lost a loved one to be told, “We cannot tell you why it happened.” I am pleased that inquests are not included. I am surprised that there is a move to put them back in. I had hoped to ask the shadow Secretary of State whether he supported that move, but I suspect that I can guess the answer.

Amendments 39 and 40 relate to gisting. My hon. Friend the Member for Edinburgh West (Mike Crockart) and I tabled similar proposals in Committee. I find it hard to see why there would be many cases in which a judge would not want a gist to be made available. We want that to happen. I understand that there may be cases in extremis where no gist would be possible. It would be helpful if the Minister made it clear that it is the intention that judges should always gist to the maximum extent possible. As long as that is said in this place, I think that we will be able to make progress.

[Mr George Howarth]

The hon. Gentleman makes a good point about gisting. In an exchange with him in Committee, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), gave a verbal assurance that gisting would be an acceptable way of proceeding. If that assurance was repeated today, and then taken with what the hon. Gentleman has just said, it would give a good indication of Parliament’s intention and would probably satisfy the point.

[Dr Huppert]

I dare say that it would. We will have to see what happens.

To return to the principle, I talked earlier to the right hon. Member for Blackburn about the range of civil proceedings into which the previous Government introduced close material proceedings. I find many of those far more objectionable than civil cases. I do not like the introduction of closed material proceedings into civil cases and find the principle very difficult. However, I find it worse when people’s liberty is at risk. That is the case with control orders, terrorism prevention and investigation measures, and SIAC.

I know something of the case referred to by the hon. Member for Bedford (Richard Fuller) because we have discussed it in the past. The gentleman referred to has had his liberty seriously infringed. It is not a simple question of whether he is allowed to stay in the country or not. He has been detained for a considerable time now, given that it is two years since we last spoke about the case in great detail, based on evidence that he does not have the chance to see. That strikes me as deeply alarming. I am sure that the whole House would hold the position that criminal sanctions should not be allowed. We are edging very close to that if we are detaining somebody for years.

[Mr Straw]

None of us likes the idea of closed proceedings or proceedings in which the evidence is kept from one of the parties. However, on the assumption that the court has decided that the evidence cannot be made available in open court because another individual, perhaps an informant or an agent, could be killed—I am not joking—what is the hon. Gentleman’s answer to this dilemma? Is it to leave the person at liberty or to do what used to happen in the past, which was that the Home Secretary would make such decisions without any proceedings? What is his alternative?

[Dr Huppert]

I think that it is the same as the right hon. Gentleman’s alternative would be in a criminal case for which the evidence needed to convict somebody could not be gathered. If one cannot gain that evidence, one cannot proceed. It is important that that applies when people are being deprived of their liberty. I made the same argument when we were getting rid of control orders. One must try to provide the evidence that is needed to convict people. Failing that, I do not like the idea that people are simply held for many years, with very little freedom. I believe that control orders had 23-hour curfews. That is an extreme infringement of liberty. I know that we are not discussing criminal issues principally, but there are many cases in the criminal system in which the police are sure that somebody is guilty, but they cannot find evidence that may be used in court. None of us would want to see such cases proceed and the same should apply to any other serious deprivation of liberty.

I look forward to the votes. It is not clear to me exactly which matters we will have the opportunity to vote on. I will stand by all the votes that I cast in Committee, where we came very close to changing the Bill, but never quite close enough. I think that we won one vote on a new clause being read a Second time, but the decision was reversed immediately afterwards by the Chairman’s casting vote. I hope that we will change the provisions either so that we do not have these proceedings, which would be my ideal, or we at least move them closer to the proposals of the JCHR. I accept that we should not keep every word of what the Joint Committee suggested and that tweaks could be made. I hope that the Minister will consider that at the point at which he confirms the position on habeas corpus and my other questions.

[Mr Kenneth Clarke]

I may have misheard, but the hon. Gentleman is not rejecting closed material proceedings altogether, is he? He would be the first person in the debate who has gone that far if that is what he is saying. He suggests that he might vote against clause 6. Two Members from smaller parties have tabled an amendment that would delete that clause. That would take us right back to square one after we have spent the last three hours agreeing that there are cases in which national security requires there to be closed proceedings.

[Dr Huppert]

I am sure that the Minister will be aware that I and my hon. Friend the Member for Edinburgh West did press for a vote in Committee to remove clause 6. Sadly, it was defeated.

I look forward to hearing the Minister’s responses on habeas corpus and the other points that I have made because what he says may well affect what happens, and liberty is a very important principle.

[Several hon. Members]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. May I re-emphasise the time constraint?

[Caroline Lucas]

I am pleased to speak in favour of my amendments 1 to 7, and I hope to press amendment 1 to the vote. As colleagues will know, they are designed to get rid of part 2 in its entirety. That part would allow Ministers to use secret courts in a wide range of cases, for example any in which they could claim that national security was involved.

Let us look at some examples of when secret courts could be used, such as the cases of the bereaved families of soldiers bringing negligence claims against the Ministry of Defence. Debi Allbutt, whose husband was killed in a so-called friendly fire hit on his Challenger tank in Iraq, has said:

“I really don’t think people in the country realise how dangerous this new law will be for justice. I think anyone in my position deserves to know the truth about how their husband, a brave soldier fighting for his country, lost his life.”

Let us think of cases involving victims of torture or rendition in which the Government have been involved, who are seeking redress. They would also be affected, including such people as Khadija al-Saadi, who was 12 years old when she was rendered by MI6 to Gaddafi’s Libya along with her mother, three younger siblings and Gaddafi-opposing father. In a letter published by the prisoners’ human rights group Reprieve, she has said:

“I wrote to Ken Clarke when I heard about the secret courts plan, but he would not say that he would not seek to try my case in secret. I still feel this would have been unnecessary, unfair, and unworthy of the UK. I hope the inquiry will be as open and as fair as the phone hacking inquiry.

Secret courts could also be used in actions against the Government over corruption in arms deals. On Second Reading, Ministers refused to rule out the possibility of that in some cases:

“if there was embarrassment over arms sales to a particular country, where those sold arms had been used to deny the human rights of many others, against the policies and wishes of this country, and there was a desire not to make that too public”.—[Official Report, 18 December 2012; Vol. 555, c. 722.]

A case of corruption in arms deals is therefore another that would not be held in open court.

Habeas corpus claims are at risk, too. Claims under the centuries-old safeguard against illegal detention, which forces the authorities either to charge or release a prisoner, are generally considered civil actions, so secret courts could mean people being imprisoned without knowing why. That was exactly what the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), said in the Public Bill Committee—that the Bill would cover habeas corpus claims. My new clause 2 would address that.

The question this evening is whether we really want to allow the Government to ensure that everything from state involvement in torture to the neglect of British soldiers could be hidden from public view. After a decade that has seen our intelligence agencies become involved in unprecedented complicity in wrongdoing, we should ask how we can prevent that from ever happening again, not how to remove the safeguards that allow us to hold the state and its agencies to account. That is especially true when, as the high-profile case of Binyam Mohamed has amply illustrated, the security agencies have shown that they are prepared to mislead the judiciary, and given that judges tend to defer to Ministers when faced with arguments about national security.

[Mr George Howarth]

I take it that the hon. Lady’s case is that better than a closed material procedure is public interest immunity, in which case nobody ever gets to hear anything about what happened and what evidence exists.

[Caroline Lucas]

Like the special advocates and many others in the legal profession, I believe that PII is a safer way forward than having hearings in closed courts, and I stand by that.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

On a related point, the Government are currently obliged to settle cases, with none of the evidence ever being disclosed and no hearing at all. They never go before a judge. How would deleting clause 6 assist in ensuring that there is justice in such cases? At the moment, there is no trial at all.

[Caroline Lucas]

I would argue, and a huge amount of legal opinion argues with me, that secret courts are a worse option. We would not choose either option, but I strongly believe that closed courts are a step too far for British justice.

[Jeremy Corbyn]

I agree with the thrust of the hon. Lady’s speech. Does she accept that one problem with the secret courts process is that it would create a culture of impunity among the security services and allow them to develop relationships with other security services knowing that they would be protected and would be unlikely ever to have to face anybody’s wrath?

[Caroline Lucas]

Indeed, and I pointed out earlier the complicity of the intelligence services. Such arguments are mounting up, and they explain why opponents are lining up to denounce the Government’s proposals for closed material procedures. The special advocates have called them “fundamentally unfair”, and the former Director of Public Prosecutions, Ken Macdonald, has warned that secret courts will

“damage public confidence in our judiciary”

and are

“not fair because they are not balanced”.

The Law Society and the Bar Council have warned:

“Secret trials and non-disclosure of evidence are potential characteristics of repressive regimes and undemocratic societies.”

The Equality and Human Rights Commission has published expert legal advice finding that secret courts are

“incompatible with the common law right to a fair trial”

and

“incompatible with article 6 of the European Convention on Human Rights”.

18:45

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

On that point, is the hon. Lady aware that closed material procedures are already used by, for example, the Special Immigration Appeals Commission, and have been held not to be incompatible with the European convention? Is she not waving her shroud a little too strongly?

[Caroline Lucas]

As somebody who has a constituent who has been subject to SIAC, I can assure the hon. Gentleman that I am not waving my shroud nearly strongly enough. The SIAC process is inhumane. We can discuss later whether it falls foul of article 6, but the idea that because we already have CMPs in that example it is somehow appropriate to export them to civil cases is misguided.

[Richard Fuller]

The hon. Lady is making a strong point about the continuation in a new area of a procedure that applies in certain areas. What does she feel will be the implications for how British justice is perceived around the world, in countries where we would like the standards of our justice system to be adopted, if we proceed with the proposal in the Bill?

[Caroline Lucas]

That is a good question. We like to hold our justice system up as an example to the world, yet if we go down this route, we will fundamentally undermine some of the principles of British justice that we have rightly been proud of for many years, and people around the world will look on with genuine shock.

Last week, more than 700 figures from the legal profession, including 40 QCs, had a letter published in the Daily Mail—not a newspaper that I have often quoted in the Chamber—stating that the proposals in the Bill to allow a huge extension of court hearings behind closed doors would

“erode core principles of our civil justice system”.

They argued that if the Government’s changes were allowed to go ahead, they would

“fatally undermine the court room as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the Government can be transparently held to account.”

The proposals, they concluded, were “dangerous and unnecessary”.

The Scottish Cabinet Secretary for Justice also has serious concerns about the Bill’s provisions relating to closed material procedures in certain civil proceedings, and the Scottish Government have concluded that they are

“unable to support any extension—under any circumstances—of the Bill into devolved areas.”

[Mr Ellwood]

I understand the thrust of the hon. Lady’s argument and the position that her party takes, but does she recognise that the House’s first obligation is the protection of the nation? One way in which we thwart many potential attacks against this nation is through our work with intelligence services from other countries. If we go down the route that she suggests, that relationship will break down. No other country will trust us with information if it is then exposed in court, which will make our country even more vulnerable to attack.

[Caroline Lucas]

Is the hon. Gentleman seriously suggesting that, right now, other countries are not sharing their information with us because of the current situation?

[Mr Ellwood]

Yes, that is exactly what happened.

[Caroline Lucas]

I disagree with the hon. Gentleman. No one is suggesting that PII will not still be available so that we can have measures such as redactions.

[Mr George Howarth]

It is generous of the hon. Lady to give way to me a second time.

As a member of the Intelligence and Security Committee, I have spoken to members of the Obama Administration and the American agencies, and they are quite emphatic that they are now giving us less information than before the Binyam Mohamed case.

[Caroline Lucas]

Well, all right. I stand corrected by the right hon. Gentleman, but if he is suggesting that we go down the route that the US has been going down over the past few years with the invasion of Iraq and everything that has gone with it, that is up to him. It is not the road that I want to go down.

I have received a huge number of e-mails and letters from constituents who argue that although our legal system is not flawless, the new measures are an attack on its founding principles. Any Liberal Democrat Ministers and MPs who back part 2 of the Bill do not have the support of their party members who voted at the party conference last September to oppose secret courts. I therefore remind Liberal Democrat colleagues that party members have reaffirmed their opposition to secret courts as well as their commitment to the rule of law, open justice and holding the Government to account, the right to a fair trial and the protection of civil liberties. They have called on Liberal Democrat MPs to vote against part 2 of the Bill, and I hope that colleagues will bear that in mind when we come to vote.

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

Will the hon. Lady give way?

[Caroline Lucas]

I will make a little more progress.

The TUC has taken a similar line and passed a motion that condemns secret courts as posing a significant threat to public security and accountability. Such widespread opposition stems not just from principles, because there is a complete lack of evidence to back up the proposals in part 2 of the Bill. The Bill is about security yet the Government do not claim that closed material procedures would do anything to promote national security. Indeed, they accept that the existing process of public interest immunity already provides effective safeguards for that process.

The Government have been unable to demonstrate that the courts cannot resolve issues fairly because they lack recourse to secret courts. They refer to 20 or 30 cases that they say require closed material procedures, yet they have refused so far to allow any proper access to the details of those cases so that their claims can be evaluated for accuracy, for example by the special advocates. As the Joint Committee on Human Rights stated, the Government have not demonstrated with evidence that there is a real and practical problem. Until they can prove that public interest immunity is not sufficient, there can be no justification for the introduction of closed material procedures. Even then we would need guarantees that the basic rights and principles of justice are not being undermined.

There have been attempts to amend part 2 of the Bill; indeed, I have tabled a new clause to limit the circumstances in which closed material procedures can be used. Let me be clear, however, that that is a last resort and the best option by far remains to scrap part 2 of the Bill. The amendments that have been tabled by the House of Lords only slightly modify the process by which a secret court is imposed on a case. Even if closed material procedures are considered a last resort after public interest immunity is exhausted, simply having such a measure on the statute book is likely to lead to its increased use.

Hon. Members will be aware that the Government are seeking to undo many of the changes made by the House of Lords, claiming to have listened to widespread and grave concerns about the Bill. They effectively want to reinsert the original test for triggering closed material procedures, thereby scrapping the requirement that such procedures are a last resort once a judge has decided that a fair determination of proceedings is not possible any other way. That removes the only real bar on secret courts becoming routine in civil cases, and negates the move to introduce judicial discretion. In common with the Government’s recent amendments that require the Secretary of State to report annually to Parliament on closed material procedures and keep their use under independent review, such measures are frankly just tweaks that leave intact the core of the Bill. Secret courts will still be available across the civil justice system, and will still be fundamentally unfair. The only way to safeguard Britain’s system of fair justice is by removing from the Bill clauses 6 to 11 that provide for secret courts.

Closed material procedures would allow Ministers to exclude their opponents from the courtroom, along with the press and the public, and provide a one-sided case to the judge, free of effective challenge.

[Sir Menzies Campbell]

I do not challenge the hon. Lady’s sincerity for a moment, but I hope she will accept that when it comes to voting on matters of such important principle, every Liberal Democrat MP is obliged to use his or her judgment. She speaks as if Ministers were in a position to resolve these matters. Ministers are entitled, through barristers or advocates, to make application to a court on which the judge has to decide. Ministers may wish to bring about such an objective, but unless a judge is satisfied that that is in the interests of national security, they will not be successful.

[Caroline Lucas]

I thank the right hon. and learned Gentleman for that intervention but I am afraid that that response does not give me the comfort it obviously gives him.

In conclusion let me say a few words about new clause 2. Although I judge that the House is not with me on amendments 1 to 7, new clause 2—which will be taken as part of the same group—looks at how we can try to restrict the number of cases where CMPs are used. Proposed subsection (1) concerns circumstances in which the liberty of the individual is at stake. Ministers have confirmed recently to the Bill Committee that CMPs could be used in habeas corpus cases where an individual seeks to challenge their detention by the state. Although such cases may not be common, the current Bill would leave us in a position whereby an individual losing their habeas corpus claim could, as a result of a CMP, remain imprisoned without knowing why. Subsection (1) of new clause 2 seeks to rule out such a possibility by ensuring that a CMP will not be available

“where the outcome could result in, contribute to, or impede efforts to challenge the imprisonment; or continued detention of a party, whether in the UK or overseas.”

Subsection (2)(a) of new clause 2 aims to ensure that a CMP cannot be used by the Government to cover up some of the most serious international crimes—for example where genocide or torture are at issue. That is fairly straightforward, as there is clear public interest in those proceedings taking place in as open and even-handed way as possible, and the use of a CMP would be entirely at odds with that aim.

Finally, subsection (2)(b) aims to ensure that material will not be withheld in a CMP where doing so may result in the wrongful imprisonment or death of an individual, whether in the UK or overseas. For example, that could apply where an individual potentially faces capital charges on the basis of “evidence” extracted under torture, as with Binyam Mohamed.

I will now conclude my speech, but let me say that an awful lot of people are watching the House tonight. Although I accept that my words are the minority view in this Chamber, huge numbers of people are deeply concerned about the direction in which closed material proceedings would take us. I hope that hon. Members will be mindful of that when the matter is put to a vote.

[Sir Malcolm Rifkind]

The hon. Member for Brighton, Pavilion (Caroline Lucas) does no service to the causes in which she believes by the extraordinary exaggeration of her remarks, although she is not the only one. I noticed, for example, that Shami Chakrabarti—who really ought to know better—referred to:

“Government arguments for morphing British courts into shadowy Soviet-style commissions”,

and that Amnesty International said that the system could come

“straight from the pages of a Kafka novel”.

The hon. Lady must try to rely on facts and not on rhetoric. For example, we have the constant use of the phrase “secret courts” but there are to be no secret courts. We are talking about cases in which the vast majority of evidence will be heard in open session. If closed material procedures do apply, they will apply usually to a very modest part of the total evidence. Thousands of civil cases are brought each year and estimates for how many cases would be affected by CMPs are somewhere between seven and 15 a year. The idea that we are transforming our society into one in which civil liberties are not recognised does not bear credence.

I have been somewhat amused by the extraordinary affection that has grown over the past 15 years for public interest immunity certificates. As I mentioned earlier, I signed one of those and I remember hearing howls of execration from the Labour Benches at the time and from the whole civil liberties movement. We were told that public interest immunity certificates were going to send innocent people to jail and do all sorts of terrible things that were incompatible with a free society. Well, we have moved on. Those who denigrated PIIs now see them as a way of preserving our liberties against evil Governments, intelligence agencies and the like.

Let us consider the views of those who have had greatest involvement in such matters, and remind the House what has been said by two people when comparing PIIs with closed material procedures. Lord Carlile, formerly a Liberal Democrat Member of this House and independent reviewer of terrorism legislation, said:

“CMP hearings, with special advocates representing the interests of the individual litigant concerned, are fairer and more searching than the significantly more secretive PII hearings process.”

Lord Justice Woolf, in addition to other remarks that have been cited, said he thought Lord Carlile was right and that

“in most situations that are covered by the Bill the result will be preferable to both sides”—

that is crucial; it will be preferable not just to the Government or the defendants, but to the plaintiff as well—

“if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government”—

not just the Government; the claimant as well—

“may want to rely on that material. That is a good reason for having the closed-hearing procedure.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]

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

Will the right hon. and learned Gentleman clarify whether that is the same Lord Carlile who argued endlessly in defence and justification of 90-days pre-charge detention?

19:00

[Sir Malcolm Rifkind]

I have no idea whether it is the same one or not; that will be a matter for Lord Carlile to deal with. He has served this country extremely well in these sensitive areas, and the hon. Gentleman should take account of that.

The whole problem is that the critics of these measures fail to take into account two things. First, although there can of course be qualifications under PII, including redactions and witnesses giving their evidence behind a screen, the core of the secret material cannot be revealed to the plaintiff without it being revealed to the whole world. It is not just a question of the plaintiff hearing it. Those of us who are privileged to serve on the Intelligence and Security Committee have seen examples of the intelligence material that would have had to be revealed if certain cases had not been settled at huge cost to the taxpayer.

In response to a comment by the right hon. Member for Blackburn (Mr Straw), I must point out that this is not just a question of the identity of an individual agent or officer being revealed. It goes far beyond that, because that person could be protected by a screen or by being given anonymity in court in some other way. It is also a question of evidence involving operating methods, for example. The material could reveal how the intelligence agencies quite lawfully obtain their evidence.

It is worth reminding those who are going to vote against the Government how thankful we are that there have been no further terrorist outrages in this country since the 7/7 bombings. In every year since then, major terrorist plots have been prevented by the work of the intelligence agencies, and much of that work relied on obtaining highly sensitive information, sometimes from individuals who were not intelligence officers but who came from the very organisations and communities in which the plots were being hatched. If the methods by which such information is obtained cannot be kept secret, no one should come to the House saying how much they regret some future terrorist incident if that incident has taken place because the agencies have been prevented from getting the support and co-operation that they need.

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

Will the right hon. and learned Gentleman give way?

[Sir Malcolm Rifkind]

I want to make one other point, if I may.

The other element that critics of the Bill do not take into account is that much of the information we are talking about can relate to misunderstandings on the part of the terrorists or criminals, who sometimes do not realise when their conversations are being listened to or when their property has been entered under lawful warrants and information obtained. They do not realise how stupid some of the precautions are that they take to protect their evil plans. That kind of information cannot be released in court. The plaintiff might be an innocent person, but if the information is released in court, it becomes available to the whole world, including the terrorist organisations and criminals themselves.

[Sir Richard Shepherd]

I am moved by the impassioned nature of my right hon. and learned Friend’s response to this matter. He is quite right; this is a serious matter and no one doubts that. Is it not strange, however, that some of the information that we are accused of passing on comes from the American court system? We have been held accountable by American intelligence for that as though it were a fault on our part. If the Americans are able to maintain their tradition of an open court system, why should we not do so?

[Sir Malcolm Rifkind]

I know the case that my hon. Friend is referring to, but that is not really the point at issue. The point is that when intelligence agencies, including the British ones, share information with their friends and allies from other countries, they do so on the strict condition that that information will not enter the public domain without their permission. This is not so much a question of whether the information in a particular document might be harmful; it is a principle, and that principle must not be breached.

[Sir Richard Shepherd]

rose—

[Sir Malcolm Rifkind]

I am conscious of the time, and I want to make a few more points, if my hon. Friend will forgive me.

This point goes to the heart of what Lord Woolf, the former Lord Chief Justice, has said. The plaintiffs themselves will sometimes benefit from the arrangements, as well as the Government who are defending the case. I can think of current cases, some of which are controversial, in which information given to the judge about the activities of the intelligence agencies some years ago could well help the plaintiff as well as the Government.

Furthermore, if it was suggested that a particular closed material procedure had been drawn too widely to include information that did not need to be protected, the benefit of the special advocate system is that if the advocate was doing their job properly, they would raise the matter with the judge. If the judge was satisfied that the breadth of the closed material procedure needed to be reduced, the evidence in question could be heard in open court.

[Sir Menzies Campbell]

My right hon. and learned Friend makes a powerful point regarding the interests of the plaintiff. If a PII certificate were to be utilised in such circumstances, the plaintiff would have no chance of taking advantage of any conduct on the part of the intelligence agencies and others that could result in his action being successful.

[Sir Malcolm Rifkind]

My right hon. and learned Friend is right.

That leads me to my final point, which goes to the heart of the Opposition’s amendment. It concerns the so-called Wiley balancing act, in which a judgment must be made on whether national security is more important than the administration of justice. Of course that is relevant for PII, because that is the absolute choice that has to be made in those circumstances, but the whole point of closed material procedures—unlike PII—is that the evidence will be available to the judge. The administration of justice cannot but be helped if the judge has access to all the relevant information. So the Wiley balancing act is simply not relevant in such cases. The judge must be satisfied that there is a risk to national security, and he will have the last word on that. At that point, a closed material procedure will be granted, and that is the least bad option. We do not argue that CMPs are a good option, that they are desirable or that they are ideal. They are far from that, but they are better than the alternatives and, sometimes in this imperfect world, this is the only responsible way to behave.

[Paul Goggins]

I shall try to be brief, as I know that other Members wish to speak. It is a pleasure to follow my colleague, the Chair of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind). I am sure that it was music to the Minister’s ears to hear a speech from his own Benches in support of the Bill. I know that he welcomes the fact that there have been a number of speeches from the Opposition Benches, of which this is another, that are broadly in support of the Bill.

There are two fundamental arguments in favour of the direction that the Government are taking. The first is the need to deal with the present inability of the security and intelligence agencies to defend themselves against civil claims. That point has been debated over the past few hours. My right hon. Friend the Member for Blackburn (Mr Straw) did the House a great service by reminding us that we are talking not about bits of paper, but about human sources of intelligence. We are talking about human beings, and the agencies have a fundamental responsibility to protect the lives of those people. Even in the course of protecting their own interests, they can do nothing to undermine the safety and security of those people. Those are vital obligations to human beings, not to scraps of paper with information written on them. The idea that any serious judge would grant closed material proceedings in relation to intelligence that might prove embarrassing or slightly awkward for an agency is preposterous. This is all about highly sensitive intelligence, about sources and about methods.

The second element that makes the legislation imperative is the need to make the agencies themselves more accountable. I do not want to see a PII one-way street that allows an agency to hide material completely or to settle out of court. If intelligence exists that there has been wrongdoing in the agencies, I want that evidence to be considered by the judge and to be weighed in the balance when conclusions are reached.

Reflecting on the debates on these matters, I believe that it should be possible to close the gap between the Front Benches on the ability of the judge to choose the appropriate route to take. I think I heard the Minister say earlier that, even at this late stage, he was prepared to go away and give further consideration to that issue. If there are further opportunities to do so, I hope that he and my right hon. Friend the Member for Tooting (Sadiq Khan) will reach consensus on this point. The Minister has come some way towards that by tabling amendment 47, and that is helpful. The court must now be satisfied that the Secretary of State has considered whether to make an application for PII, and that goes some way in the right direction. I encourage him and my right hon. Friend to try to close what remains of the gap between them. As far as I am concerned, the last resort should be the PII. I cannot agree with the hierarchy set out by the right hon. Member for Haltemprice and Howden (Mr Davis). I want less secrecy and there is less secrecy through closed material proceedings.

On the Wiley test and the substantive difference that clearly still exists between the two Front Benches, I urge further and fresh consideration, if that is possible. I am not a lawyer, as may be evident to anyone who has ever heard me speak on these matters, but if the decision is whether the material should be in or out, then a test of open justice is a fair test, and that is the test that applies in PII. However, if the decision is about closed material proceedings, then, frankly, that is a decision about whether the material is fully in or not fully in. If a judge can see it but others cannot, and if the merits of a particular piece of intelligence can be weighed by the judge, clearly that is a more difficult and complex judgment. It therefore does not surprise me, as a non-lawyer, to know that a different test from the Wiley test may need to be applied.

Amendment 30, tabled by my right hon. Friend the Member for Tooting, sets the bar too high, but I encourage further consideration wherever possible. There are various stages to the closed material procedure. There has to be consideration on whether to enter the process in the first place, and on whether the process should end. Therefore, there has to be an appropriate test and further thought on it, but I think that my right hon. Friend sets the bar too high.

[Mr Winnick]

My right hon. Friend talked about a consensus in this House. I hope there will be the maximum amount of opposition to the proposals. Does he dismiss out of hand the number of people—distinguished lawyers who cannot be lumped together as hopeless liberals and so on—who believe that the proposals, which will no doubt be carried, erode the rule of law? We should be very concerned about what is happening.

[Paul Goggins]

My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.

On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.

[Mr Kenneth Clarke]

I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.

[Paul Goggins]

The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.

[Mr Straw]

I am sure that my right hon. Friend is aware that the idea of having closed material proceedings was not just the policy of the previous Labour Government. Proposals were introduced, but sadly they were blocked in the other place.

19:15

[Paul Goggins]

My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.

The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.

[Mr Kenneth Clarke]

The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.

[Paul Goggins]

I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:

“I intend to conduct this inquest with the greatest degree of openness and transparency”—

and that he would give the Foreign Secretary’s request for a PII certificate—

“the most stringent and critical examination”.

We ought to trust the coroner and the judges.

In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

[Mr Brazier]

This has been a high quality debate, starting with a typically rigorous speech by the Minister without Portfolio. It has been particularly noticeable that, while there have been strong speeches on both sides, all three Members who have had responsibility for this matter—the right hon. Member for Salford and Eccles (Hazel Blears), the right hon. Member for Blackburn (Mr Straw) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who made an outstanding contribution—took the view that we have to have this kind of legislation, and that the amendments would not be helpful. I want to put forward a couple of underlying reasons why I believe firmly that we need the Bill and that the amendments—some of them, anyway—would wreck it, and then delve a little into the historical background. I am concerned that the civil liberties lobby is just a little bit too free in its claims about British judicial traditions.

The one voice that does not seem to have been heard anywhere in the debate is that of the intelligence service. Baroness Manningham-Buller said:

“At the moment there is no justice at all in civil cases where individuals sue the Government for compensation, claiming, say, mistreatment or complicity in torture. Because the secret material held by the authorities cannot be used in court, the Government is forced to settle without a judge examining the merits of the claim. This is immensely damaging”—

immensely damaging—

“to the reputation of the Government and the intelligence and security agencies which cannot defend themselves; to the taxpayer who has increasingly to stump up millions in compensation; and perhaps most importantly of all to the claimants who, while they may receive large cash settlements, do not get their cases heard and judgment reached.”

I have a further concern. A friend of mine, former SAS officer Colonel Richard Williams, who has allowed me to quote his name in the press, has recently been attacked in one of our newspapers with allegations of brutality. The allegations are lies from beginning to end. Bizarrely, they start with the claim that he is being investigated for wrongdoing in Iraq. As he has never been investigated in any shape or form, that is a lie before we even get into the specific allegations. But let us suppose just for a moment that somebody was to turn those allegations into a court case. The circumstances of the operation concerned in the allegations involve some extremely secret material—where the tip-offs came from, modus operandi and so on. Now, it is quite possible that this man, who has been decorated for gallantry and leadership twice and badly wounded—indeed, he had another operation for his wounds only last year—could find himself facing a court case while being extremely reluctant to use certain material in his own defence, because no procedure is available under which he could do so without the risk of breaching secrecy.

[Mr Kevan Jones]

Does the hon. Gentleman also agree that this concerns not just the sources of intelligence, but the operating systems of troops on the ground? If anything got into the public domain—for example, about operations in Iraq by special forces—it would limit future operations, if those tactics became known to our opponents.

[Mr Brazier]

Of course, the hon. Gentleman is absolutely right. I used the phrase “modus operandi”. This brave officer led our special forces operation for so long in Iraq and did so well at a time when, frankly, other parts of our military operation were failing—the verdict of history is that sadly they did largely fail. The hon. Gentleman is right that this is not only about sources, but about modus operandi, but there is now a further wrinkle. Because the Government have committed to much more of what is generally called “upstream intervention”—putting small numbers of people into areas where they are not in charge or running the show, but simply mentoring, the dodgiest end of which will inevitably go to special forces—this is not only about our modus operandi, but about whether our relationships with host countries, which in almost every case will, I believe, do better in a range of different ways with advice from our special forces, will be possible at all.

I shall move on to the second part of my comments. In Committee, I listened again and again to hon. Gentlemen talking about ancient British traditions of justice. I have listened again and have been reading some of the contributions from the human rights lobby. Although they are perfectly entitled to their points of view and I am willing to listen to them with respect, they cannot claim that the current position of the civil rights lobby, which is reflected in some of these amendments, is in any way rooted in the traditions of British justice.

Let me quote what Lord Denning said in a deportation case some 40 years ago. He was speaking on the Hosenball case, which involved the deportation of, ironically, an American journalist. The case was decided unanimously in favour of the Home Secretary, but nevertheless Lord Denning felt that he ought to put some extra remarks on the record, just to remind people where the balance of British justice lay:

“But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed.”

Time is brief and others are waiting to speak, so I will not go back to the earlier Liversidge v. Anderson case during the second world war, where by a 4:1 majority the locking up of everybody who happened to be German, with no procedure at all, was upheld. Suffice it to say, however, that this was the continuous view of the courts all the way through until the Belmarsh case. I will give one further quote. Ironically, I would like to quote Lord Hoffmann, one of the judges who found against the Government in the Belmarsh case, on the rather narrow grounds rooted in the then brand-new human rights provisions. In 2001, he commented in a lengthy judgment in the Rehman case:

“I shall deal first with the separation of powers… What is meant by ‘national security’ is a question of construction and therefore a question of law within the jurisdiction of the Commission, subject to appeal. But there is no difficulty about what ‘national security’ means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

The concessions that the Government have already made, even without going down the route of amendment 30, go much further than any court would have required 10 or more years ago. Whatever the claims of the human rights lobby, the British judicial system always used to understand the vital demands of our national security, and I urge the Government not to give any further ground.

[Mr George Howarth]

It is a pleasure to follow the hon. Member for Canterbury (Mr Brazier). I shall try in a moment to give some examples of how important the point is that he finished on.

My right hon. Friend the Member for Blackburn (Mr Straw) referred to the well-known liberal credentials on these matters of the Minister without Portfolio. I would go further—perhaps my own Front Benchers will take this into account—and say that if someone is as liberal as he is, they are probably in the wrong place and, on this occasion, if someone is even more liberal than he is, they are almost certainly in the wrong place.

I would like to make one further point by way of introduction. I came here genuinely hoping to be persuaded by my right hon. Friend the Member for Tooting (Sadiq Khan) to follow the course of action he has outlined in the amendments. I wanted to hear what he had to say—that was why I made at least one, perhaps two, interventions—and to see whether he had an answer to some of the dilemmas I felt still existed in our approach to the Bill and, more particularly, our amendments. Before arriving here, I decided to read what he said on Second Reading about the tests he set for the Bill at that time and what it would look like when it left Committee.

My right hon. Friend relied heavily, though not exclusively, on the words at the time of David Anderson QC, who concluded that there was a

“case for restricting the novel application of Norwich Pharmacal jurisdiction to national security information”—

the relevant clause at the time was clause 14—but that the Bill at the time was

“too broad in its application.”

Beyond that, however, no specific tests were set other than those set by the Joint Committee, which its Chairman listed at the time.

19:30

Two of those tests are relevant to the speech that I am making now. The first was the judicial balancing of interests—which we have discussed quite a bit—and the second was a more proportional response to the problem of preventing the ordering of disclosure of national security and other sensitive information. I think that the Bill, as amended, meets those two tests. Clause 7 now sets out in some detail the conditions that apply in the determination of whether closed material proceedings are justified. That includes the disclosure of sensitive material, the possibility of a PII’s being appropriate, and no disclosure by voluntary means. In this last event, the case collapses and someone usually ends up with a large payment as a result.

Clause 7(2) relates to the rules governing proceedings once an application for use of a CMP has been granted. It states:

“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of fair and effective administration of justice in the proceedings.”

There is a test there, requiring the judge presiding over the case to make those considerations. That is not too distant from the conditions that my right hon. Friend and others are seeking, but, as we heard earlier today, it is different in some important ways.

The Wiley balancing test of fair and open administration of justice simply cannot be applied. I cannot imagine circumstances in which it would be possible to justify describing closed material proceedings as open; that strikes me as an absolute contradiction in terms. I believe that if amendment 30—which my right hon. Friend intends to press to a Division—were passed, it would have a wrecking effect, although I know that that is not his intention. In my view, the Government’s test of fair and effective administration of justice is proportionate—as the Joint Committee required—and workable.

It must be borne in mind that the purpose of CMPs is to ensure that cases are considered by the courts, rather than the opposite. My right hon. Friend the Member for Salford and Eccles (Hazel Blears) made that point very strongly. The opposite is a PII, and on that basis I think that this is more a progressive move than the opposite. One of the strange ironies of politics that I have observed over the years is that there are occasions when the progressives adopt the reactionary position, and the reactionaries—although I hesitate to call the Minister without Portfolio a reactionary—adopt the progressive position. I think that this is one such occasion, and my right hon. Friend made that case very effectively.

I said earlier that my right hon. Friend the Member for Tooting relied heavily on David Anderson’s evidence, which was available at the time. Since then, David Anderson has been given an opportunity to inspect the relevant files on the cases that are pending, and has concluded:

“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought.”

What he meant was that it cannot be justifiable to make large cash settlements rather than taking a case to court. I hesitate to interpret what such a distinguished gentleman said, but that seems to me to be the gist of it.

Having listened carefully to what was said by my right hon. Friend the Member for Tooting and one or two others, I honestly cannot support amendment 30. I believe that, albeit unintentionally, it would have the effect of wrecking what I consider to be progress rather than the opposite. I find it difficult to do this—I do not do it regularly, and when I do, I do it with a heavy heart—but I am afraid that, on this occasion, I do not feel able to support my own Front Benchers.

[Mr Edward Leigh (Gainsborough) (Con)]

I know that you are anxious to allow others to contribute, Mr Deputy Speaker, and I hope to encompass my remarks in two or three minutes. I also hope that the right hon. Member for Knowsley (Mr Howarth) will forgive me, a reactionary, for being progressive, but occasionally that is what one has to do.

I think I could have made this point very simply to my right hon. and learned Friend the Minister in an intervention, but I was unable to catch his eye. The general tenor of his remarks was that this was an argument got up by lawyers, that he had tried to make more and more concessions, and that we were dancing on the head of a pin. I think that there is a fundamental point of principle that can be expressed very clearly by a Conservative. There has been a great deal of reportage this week about what the Conservative party stands for. In my view, it stands for a deep and abiding distrust of the state and its agencies, and a desire always to stand up for civil liberties. That is why our party was founded.

When the Minister leaves the House tonight, as he goes through the Members’ Entrance he will see on his right a small plaque which marks the site of the Court of Star Chamber. Why did Toryism develop in the 17th and 18th centuries? It was in retaliation against the powers of states encompassed in that secret court, whereby people could be tried without knowing the evidence against them. I know perfectly well that we are not talking about criminal cases now, but civil cases too are very important. Justice, in my view, is indivisible.

The principle of justice in this country as I understand it, and as maintained by the Conservative party for centuries, is that any citizen can go to a court of law as a litigant, and his case will be heard in public. He will give his evidence in public, the defendant will give his evidence in public, the plaintiff can cross-examine the defendant on that evidence, and the defendant will know the evidence that is adduced against him. That is a fundamental principle of our courts of law.

It is not good enough to say that the judges will be very careful, or that it will be just a matter of a few cases out of several thousand. Perceptions are important, and what does our country stand for, above all else? It stands for the principle that a defendant knows the evidence against him. It is not good enough that some judge, however careful, can cross-examine on the basis of that evidence, and it is not good enough that some special advocate can do the same, because the defendant alone knows his case, and he alone must be allowed to put it.

It is not good enough to say that the present system is unsatisfactory, and to talk about PIIs and all the rest of it. Of course a defendant can always choose not to adduce a particular piece of evidence, and of course the state can always decide that it would be dangerous, and inimical to its own interests, to reveal how it operates. We all know that, and the state may indeed lose the case, but that is its decision. This is something quite different. We are taking a fundamental step, and it is a dangerous step. That is why I will not support the Government tonight.

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

I will follow in the tradition of the progressives, and say that I opposed the Special Immigration Appeals Commission when it was introduced. My right hon. Friend the Member for Blackburn (Mr Straw) referred to Kafkaesque language and said that we should not exaggerate, but I opposed SIAC then because I thought that it was Kafkaesque. I think that the idea of being tried for something and not being entirely sure what it is, and of not hearing the evidence and not being able to respond to it, is typical of Kafka. I warned then that if we were not careful, there would be an incremental creeping extension of that into other areas of law. That is what we saw with control orders, and we are seeing it again tonight.

I fear that within five years we will be back here debating certain areas of the criminal law, unless we draw a line in the sand tonight and say that enough is enough. I think that we are undermining the basis of British law—as the hon. Member for Gainsborough (Mr Leigh) said, the fundamental civil liberties that were fought for over generations. When the Supreme Court considered the matter, it made it clear that there should be compelling grounds if we are to take this step, but the only compelling ground we have been told about today is that the Government might have to shell out a few millions pounds in compensation every now and again. That is not compelling grounds for undermining our civil liberties in this way.

There seems to be a bizarre reversal of the history of why we are here. We are not here today to debate how we protect our security services; we are here because the security services were exposed as being associated with other regimes involved in rendition, torture and other human rights abuses. Rather than discussing how we protect our security forces, which of course is fundamental, we should also be debating how we hold them to account. That does not mean closing the doors of the courts; it means opening them to greater scrutiny and accountability. I am concerned that we seem to be heading for a complete reversal of the debate taking place outside across the country.

People have been shocked by the stories they have heard. A constituent of mine, a young man I have known since he was a child, went to Pakistan to work in a hospital voluntarily because he is a doctor. He was picked up by the Pakistani authorities and tortured for six weeks. He was then interrogated by British intelligence officers, after torture. That is unacceptable. He is now in such a state that he does not even want to pursue a claim. He is fearful—

[Hazel Blears]

Will my hon. Friend give way?

[John McDonnell]

I understand why my right hon. Friend wants to intervene, and she has made good points, but I am really short of time and must conclude as best as I can, because the Minister still needs to respond.

On that basis, I thought that in reforming our legislation we would be considering measures that would make accountability more open and acceptable. That is why I support the amendments tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). In fact, a simpler amendment would just delete the whole part, not just each clause. That is supported not just by two minor parties, as the Minister suggested, but by a minor party, an individual and another party, and it might also have other support. If those amendments are not made, I support the fall-back protections that Opposition Front Benchers are trying to introduce, which is a commitment of last resort and a reference to open courts. Why can the judges not consider that as a factor as well, because it is one of the key factors they should look at?

I will refer briefly to new clauses 7 and 8, which stand in my name. They are based on the evidence that Dr Lawrence McNamara provided to the Committee when it considered this Bill. We discovered in this whole process that the media have played a fundamental role in exposing what has been happening in relation to the security services. We should recognise that role in statute. New clause 7 is therefore based on an amendment proposed in the Lords and recommended by Lawrence McNamara. It basically states that the media, as the eyes and ears of the general public, should be informed of these cases so that they can intervene if necessary and become involved in proceedings. They would be notified, but they would then also be able to seek a stay or sist of the civil proceedings and be party to at least some element of the debate on whether a closed procedure is necessary. When Ministers responded to that proposal elsewhere, they argued that it would not be suitable in civil damages cases. That was the only argument put up for not involving the media as a party in proceedings. In fact, these are not just normal civil proceedings; they are based on national interests and national security. That is why there needs to be some process to allow full engagement of the media and enable them to become involved and intervene in the proceedings.

New clause 8 also relates to Lawrence McNamara’s recommendations and a proposal considered in the Lords. Currently the Bill does not provide for the possibility of closed judgments being made open later. The reason they should be made open at a later stage, some would argue, is so that the courts and the process can be held to account publicly. The proceedings could be reported and then a view could be taken on whether it was correct that they went into secret court procedures. The argument is a recognition that there should be some procedure for opening closed judgments long after the secrecy is no longer necessary. The Government acknowledged on Report in the Lords that review of closed judgments is important, but they never came forward with the amendments necessary to enable that. That is why I tabled new clause 8.

The new clauses would make two minor amendments to the legislation to enable us to prise open the door of the secret proceedings a little bit more and involve the media, who have played such a fundamental role in exposing the operations of the security services that have led us to this debate.

19:45

[Mr Kenneth Clarke]

With the leave of the House, I will respond on behalf of the Government. I will briefly address the comments of those Members who have, with great passion and sincerity, opposed the whole policy of the Bill; who think that closed procedures should not be permitted and are simply incompatible with our standards of justice; and who plainly wish things to stay as they are. They include the hon. Members for Brighton, Pavilion (Caroline Lucas) and for Hayes and Harlington (John McDonnell), and even the hon. Member for Cambridge (Dr Huppert) got very near to that at one point, rather to my alarm.

I share the exasperation expressed by many Members who are more supportive of the Bill that much of the opposition to it is based on the idea that the present law does not call for amendment and that what happens now is satisfactory. Three or four Members expressed the exasperation I sometimes feel in these debates, because a growing number of people who seem to be more liberal than me, at least on this point, think that PII certificates are the ideal way of handling these cases. Most of the people who have tried to argue that point with me outside the Chamber, I am quite sure, would not have defended the PII certificate system 12 months ago and instead would have attacked it.

As we—the Bill’s defenders—have repeatedly pointed out, the whole point of PII is to exclude from anybody’s use in a case the evidence that is sensitive. Of course, one can gist and redact such as one can, but what one leaves out is anything that obviously threatens national security, which is the very information that everyone says ought to be heard. I do not accept all those allegations. I would like the civil courts to be able to decide some more of those allegations. To those who, like the hon. Member for Brighton, Pavilion, are convinced that our security services have been torturing and mistreating people and that we are trying to suppress all kinds of outrageous allegations, I can only say that if we stay with the law as it is, none of that will ever appear in a court before a judge.

The problem at the moment is that where a Government wish to bring forward their records and witnesses to try to answer these claims, there is no closed material procedure in civil proceedings to enable them to do so. We used to think that the court did that out of its own volition, but I am afraid that there have been rulings making it quite clear that that is for Parliament to decide. I will not repeat what people said a few moments ago. The absolutism of the people on the ultra-liberal wing is quite extraordinary. They are demanding silence. They are demanding no judgment from a judge. They wish things to stay as they are. I ask them to reflect on the deeply unsatisfactory nature of that. It is not true that there are other countries where one can do that.

I do not think—I am open to correction—that there is any jurisdiction in the world in which someone is trying to create a procedure whereby one can bring in highly sensitive evidence of this kind in a civil claim against the Government. Somebody calmly said that the Americans allow that. I can assure them that the Americans are extremely alarmed about the fact that we are giving those powers to our judges and wish to be reassured that national security will be protected. As has been said, they are already reducing their co-operation with us, and they will reduce it further if they think that we are opening some kind of sieve in their information. Where they issue a certificate of state security it is not challengeable. People are bringing actions in our courts claiming that we are sometimes complicit with what they say American agencies have done because they cannot bring those actions in America. They come here under Norwich Pharmacal trying to get documents from us to support action in other countries because they think we have the only courts in the world where they might be able to get hold of American intelligence material—and to do so for other people. So in supporting our approach in principle, the Government, the Labour party and the Liberal Democrats are demonstrating how committed we all are to the rule of law, human rights and the wish to be accountable to our courts. We think that we can contrive a process that does secure national security and does respect the interests of our allies while allowing a judge to consider all the relevant evidence and give a judgment.

My next point will be the final one I make on this, because I realise that the right hon. Member for Tooting (Sadiq Khan) has to wind up the debate. I still hope that we get the widest possible all-party support on this important constitutional matter, and I think that the Liberals are with us. Nobody in this House has given views that are contrary to the interests of justice or anything of that kind, but we are almost quibbling about rather important amendments; we are talking about how we can best frame our response to the Joint Committee on Human Rights and so on without actually compromising the process and making it unworkable.

I had the formidable support of the Ministers in the former Government who were responsible for these matters at various times and in various ways: the right hon. Members for Blackburn (Mr Straw), for Salford and Eccles (Hazel Blears), for Wythenshawe and Sale East (Paul Goggins) and for Knowsley (Mr Howarth). I think that the latter was right in saying that I am probably the most liberal of the five of us on most issues that come before this House. I spent my time opposing the right hon. Members when I was in opposition and they still have not persuaded me that 90 days’ detention without charge was remotely justifiable—we sat up all night arguing about that. The fact is that we are moving to resolve a serious problem, and the Labour party should give careful consideration to whether they press these measures.

I am asked by Labour Members and by others whether there is any further that we can go. I have already described the number of amendments that we have made, and the huge discretion and control that we have now given to the judge. I have indicated that we will have a look at the rules of court. I cannot be persuaded that putting “as a last resort” in the Bill is not risky. The Wiley balancing test as it is on the amendment paper is not the Wiley balancing test but a stronger version of that test, and it has been argued about interminably. It is totally unsuitable for a closed proceeding; it is designed as a stiff test when one is proposing to take all the evidence out of consideration altogether.

I urge restraint on the Opposition, who claim to wish to be in government one day—needless to say, I regard that proposition with dread. If they take some of these objections to bizarre lengths when there is complete agreement on principle between us, I can say only that were they to succeed, they would regret it. I also think that, for the reputation of our security services, for the reputation of our justice system and for the confidence of our allies, it would be very helpful if we had the support of the bulk of the three major parties. I have tried to explain why people of utmost sincerity who take the more purist view are actually living in a dream world. We will do better in holding our agents to account by having this Bill.

[Sadiq Khan]

With the leave of the House, Mr Deputy Speaker, may I repeat what I said almost four hours ago by citing the words of the independent reviewer of terrorism legislation? As I said, the Opposition accept that there is

“a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

That is our position and we are not seeking to exclude part 2 from the Bill—to be fair to the Minister, he did not suggest that we were.

I just remind the Minister that when the Green Paper was published, many on both sides of the House thought that it was perfectly adequate. When the draft Bill was first published, some on both sides of the House thought that it was adequate. We did not think that, and we pushed for improvements. When the Bill was published, before it went to the House of Lords last June, many on both sides of the House, including the Minister, thought that it was perfect and in need of no amendment. The Bill has been changed on three or four occasions in a number of areas, not least by the changes made in the House of Lords. The other place sought to put into the Bill some of the recommendations made by the Joint Committee on Human Rights. Not all of its recommendations were put into amendments standing in the names of Cross Benchers, including Lord Pannick, but some were—the ones thought to be important in order to secure the checks and balances required in this Bill.

I remind the Minister that Labour Front Benchers have on no occasion sought to remove part 2 from the Bill. He will know, as he has been in this game far, far longer than I have, that we could well have won votes in the House of Lords to remove part 2, but we appreciate the important challenge the Government face. As the Chair of the Intelligence and Security Committee and colleagues on both sides of the House have put it, “How do we get the balance with our wish to make sure that our citizens are as safe as possible, bearing in mind the huge heroic work that our security services do, relying on intelligence from other countries?” The Opposition accept the control principle and always have done, and we will debate that after the votes at 8 pm. Nobody who has spoken today in favour of our amendments has tried to caricature the people against them as not being concerned about civil liberties and human rights. To be fair, those against our amendments have not tried to caricature our position as being against, or not understanding the importance of, national security.

The hon. Member for Cambridge (Dr Huppert), who represented the Liberal Democrats in Committee, made a speech today, and I think he indicated that he will be supporting our amendments at 8 pm. I pray in aid the fact that it is not just Opposition Members wishing to press these amendments, as I will shortly. The Joint Committee on Human Rights, in its most recent report last week, confirmed that it was unhappy with the shredding of the Lords amendments in Committee. The special advocates also agree with our amendments, as does the House of Lords. The independent reviewer of terrorism legislation and the former Director of Public Prosecutions also believe that our amendments strike the right balance between national security and ensuring that individuals are able to hold the Executive to account.

During the debate, my view—the Opposition’s view—has been characterised as considering PII perfect and a utopian panacea for some of the challenges we face, but I have not said that. I deliberately took some time to pray in aid the Supreme Court decision in al-Rawi, when the court said, to paraphrase, that it would like the additional tool of CMPs and suggested that it would like Parliament to give it that ability. That is what I am seeking to do.

I say to the Minister without Portfolio that the danger lies is some of the comments made by others, who gave the impression that CMPs are often preferable to PIIs and that rather than being the exception—a point made by a number of colleagues on the Government Benches—they would become the default position. That is where he must be careful. A number of Members on both sides of the House have said that PII is rubbish, that it is not the answer and that CMPs are far preferable, and they have asked why a judge would not opt for a CMP. We are simply seeking to put in the Bill the amendments passed by huge majorities in the House of Lords on the recommendation of the JCHR to ensure that a judge understands that he must consider the other options before he decides to go for a CMP.

I know that the Minister without Portfolio did not mean it when he said that every time he makes a concession, ingenious lawyers move fresh amendments; our fresh amendment would have become stale by now, as it is four months old. I would like to press to a vote amendment 26, which is a paving amendment for amendment 31 to make CMPs a last resort, and amendment 30, which is the gateway for the Wiley balancing test for maximum judicial discretion.

Question put, That the amendment be made.

The House proceeded to a Division.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

19:59

Division 169

Ayes: 225

---

Labour: 206
Liberal Democrat: 7
Scottish National Party: 4
Conservative: 3
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Independent: 1
Green Party: 1

Noes: 298

---

Conservative: 253
Liberal Democrat: 37
Labour: 4
Democratic Unionist Party: 3
Independent: 1

20:18

Proceedings interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Amendments made: 27, page 4, line 41, leave out from ‘condition’ to ‘is’ in line 42.

Amendment 42, page 5, line 1, leave out

‘(whether or not the Secretary of State)’.

Amendment 43, page 5, line 5, leave out

‘(whether or not the Secretary of State)’.

Amendment 44, page 5, line 11, leave out ‘person concerned’ and insert ‘party’.

Amendment 29, page 5, line 18, leave out subsection (5). —(Mr Kenneth Clarke.)

Amendment proposed: 30, page 5, line 36, leave out from ‘that’ to end of line 37 and insert

‘the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.’.—(Sadiq Khan.)

Question put, That the amendment be made.

The House divided: Ayes 226, Noes 297.

20:19

Division 170

Ayes: 0

---

Labour: 206
Liberal Democrat: 7
Conservative: 4
Scottish National Party: 4
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Independent: 1
Green Party: 1

Noes: 0

---

Conservative: 252
Liberal Democrat: 37
Labour: 4
Democratic Unionist Party: 3
Independent: 1

Amendments made: 46, page 5, line 41, after ‘conditions’, insert

‘or on material that the applicant would be required to disclose’.

Amendment 47, page 5, line 41, at end insert—

‘(7A) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.’.—(James Brokenshire.)

New Clause 5

Reports on use of closed material procedure

‘(1) The Secretary of State must—

(a) prepare a report on the matters mentioned in subsection (2) for—

(i) the period of twelve months beginning with the day on which section 6 comes into force, and

(ii) every subsequent twelve month period, and

(b) lay a copy of each such report before Parliament.

(2) The matters are—

(a) the number of applications made during the reporting period—

(i) by the Secretary of State under section 6(2)(a)(i) or 7(4)(a)(i), and

(ii) by persons other than the Secretary of State under section 6(2)(a)(ii) or 7(4)(a)(ii),

(b) the number of declarations made by the court under section 6(1), and the number of revocations made by the court under section 7(2) or (3), during the reporting period—

(i) in response to applications made by the Secretary of State during the reporting period,

(ii) in response to applications made by the Secretary of State during previous reporting periods,

(iii) in response to applications made by persons other than the Secretary of State during the reporting period,

(iv) in response to applications made by persons other than the Secretary of State during previous reporting periods, and

(v) of the court’s own motion,

(c) the number of final judgments given in section 6 proceedings during the reporting period which are closed judgments, and

(d) the number of such judgments which are not closed judgments.

(3) The report may also include such other matters as the Secretary of State considers appropriate.

(4) The duty under subsection (1) in relation to the preparation and laying of a report must be carried out as soon as reasonably practicable after the end of the twelve month period to which the report relates.

(5) In this section—

“closed judgment” means a judgment that is not made available, or fully available, to the public,

“final judgment”, in relation to section 6 proceedings, means a final judgment to determine the proceedings.’. —(James Brokenshire.)

Brought up, and read the First time.

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

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

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following: Government new clause 6—Review of sections 6 to 11.

New clause 4—Expiry and renewal—

‘(1) Sections 6 to 12 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that sections 6 to 12 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.

New clause 9—Recording of data relating to closed proceedings—

‘(1) Rules of court relating to closed material proceedings under this Act, and applications for them, must make provision—

(a) ensuring that key data is centrally recorded for all proceedings, including—

(i) the duration of open hearings and closed hearings; and

(ii) the number of witnesses heard in closed proceedings and the nature of those witnesses; and

(iii) the length of a closed judgment; and

(iv) whether the claimant, defendant and/or intervener applied for closed material proceedings; and

(v) whether the claimant, defendant and/or intervener contested the application for closed proceedings; and

(b) ensuring that centrally recorded data is available to the independent person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006.’.

Government amendments 49 and 51 to 54.

[James Brokenshire]

The last debate was about the principles of closed material proceedings; we now turn to a new group of amendments relating to additional reviewing mechanisms for the CMP provisions—in particular, Government new clauses 5 and 6 and associated consequential amendments.

In Committee I said that I was prepared to listen further to concerns expressed about transparency and particularly about ensuring that the new provisions did not make CMP commonplace. I undertook to table amendments on that matter. I have considered the issue carefully and decided to adopt the view of the Constitution Committee. I therefore intend to bring forward annual reporting and a review of the CMP provisions to be conducted five years after Royal Assent.

Given the often lengthy nature of litigation, we believe that the frequency set out in the amendments allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary. We believe that an annual report is the most proportionate approach, as it is anticipated that CMPs will be used infrequently.

The consequence is that there is likely to be little to report on a basis more regular than once a year. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government have made an amendment in the Lords to ensure that when an application is made under clause 6(1), that must be reported to the other parties in the proceedings. There are already mechanisms through which the courts publish their open judgments.

The reports will focus on court procedures, as CMPs are a procedural option for the courts and not related to the use of Executive powers. The new clauses list the matters of key concern to be included in the annual reports such as the number of CMP applications and who they are made by; how many CMPs are granted and how many revoked; and how many judgments, both open and closed, are published with respect to the determination of section 6 proceedings. That would include judgments made on the substantive trial and regarding the outcome of the application for a CMP declaration. The new clauses would also cover proceedings deemed to be section 6 proceedings, such as the application process for a declaration and the review of Norwich Pharmacal certification.

In addition to an annual reporting requirement, the Government seek to introduce a provision for a comprehensive review after five years. In line with other legislation, such as the Terrorism Prevention and Investigation Measures Act 2011, it requires the appointment of a reviewer and does not specify the remit of the review except to indicate that it covers the operation of closed material proceedings. That type of review of CMPs would be different from other reviews, in that it would concern not the operation of the Secretary of State’s powers but rather the operation of court processes. That means that the reviewer will have to take care not to review judicial decisions regarding the operation of court processes or the fair running of individual cases.

[Simon Hughes]

I am grateful for the fact that the Government have been responsive to the arguments made on these issues. However, I also support the proposal that there should be a renewal mechanism—a better process than a sunset clause. When the Minister addresses that point, will he reflect on the fact that we have given ourselves the chance in the past of having an annual report and annual confirmation or otherwise of terrorist legislation in Northern Ireland and other legislation in respect of which there are ongoing cases that last a long time?

[James Brokenshire]

I am pleased to engage in that debate. I will come to it when I address the amendments tabled by the Opposition. At this early stage, I should say that in essence it is a question of the assurance provided to external partners as well as the operation of the courts themselves. I hear the point that the right hon. Gentleman makes, but I hope he accepts that the proposal for an annual review or, in effect, an annual sunset clause in the first instance and then an annual renewal thereafter, does not leave a great deal of time for litigation, which is likely to span several years because of its nature and complexity. I am sure that we will hear more from the Opposition about why they have sought to advance this time period over anything else. There is a principle at stake as regards the assurance that we are seeking to provide through this mechanism. We have gone for the option of five-yearly reporting, with a proper examination of the operation of the Bill, to enable Parliament to be properly informed. It will then be for Parliament to consider what further steps may or may not be appropriate at that point.

We would expect such a review to take into account the views of special advocates, among others. We want to ensure that it will involve a proper examination of the operation of CMPs to consider efficiency, trends and types of cases, analysing the numbers provided in the annual reports to reflect on how CMPs are being used.

[Mr Charles Walker (Broxbourne) (Con)]

How many CMPs does my hon. Friend anticipate there being in any one year?

[James Brokenshire]

Our latest estimate in October was that about 20 cases would fall within the scope of these proceedings, and the regulatory impact assessment indicates up to 15 cases annually. The point is to ensure that there is annual reporting of the forthcoming CMP applications and judgments so that Parliament is regularly updated. We will get a better sense of the situation on an annual basis than if we went for quarterly reporting. That would be too short a period given the nature of litigation and the length of time that these cases are likely to take to go through the courts.

Let me deal with the Opposition new clauses tabled by the right hon. Member for Tooting (Sadiq Khan) and the hon. Member for Hammersmith (Mr Slaughter).

[Dr Huppert]

rose—

[James Brokenshire]

Before I do so, I will of course give way to my hon. Friend. We debated this issue in Committee, and I hope that he will reflect on the changes that the Government are making in the light of a number of representations that he made there.

[Dr Huppert]

I thank the Minister for tabling the two amendments that reflect what we discussed in Committee, where he a made commitment that he has followed through on. I have a question about new clause 6. He spoke about a five-yearly review, but that will be after only one period of five years. If that review were to say that further studies would be needed and that the system was still taking time to bed in, would there be the prospect of having further five-yearly reviews as the process continued?

[James Brokenshire]

A five-yearly review with, in essence, each Parliament having the opportunity to examine the operation of CMPs is appropriate. As my hon. Friend will know from our previous debates on, for example, the Terrorism Prevention and Investigation Measures Act, my view has been that that time period or cycle gives sufficient time to enable a proper consideration of the operation of the process. The right period is five years—in essence, once a Parliament so that each Parliament can consider what may or may not be appropriate at that point.

New clause 4 provides that the new CMP provisions would expire only a year after Royal Assent unless a statutory instrument extending the provisions for a further year was laid before Parliament and approved by resolution of each House. The Government believe that the new clause would largely negate the benefit of the provisions in part 2 and that it is disproportionate. The negative impact of what would amount in the first year to a sunset clause could be very serious. As I have said, we know that litigation can be lengthy, lasting a number of months and usually more than a year, while document-heavy cases can last for several years. Creating the possibility that CMPs would cease to be available halfway through the progression of a case where the judge had already decided that a CMP was in the interests of the fair and effective administration of justice in the proceedings would, in our view, undermine the judge’s discretion.

I think that the House is in basic agreement that CMPs should be available as a tool to the judge and that the judge should have discretion on whether to use one or not. In exercising that discretion, the judge will consider whether or not he agrees with the Secretary of State’s assessment of damage to national security and how the case should be fairly run. Even once a judge has decided that a CMP should form part of the procedures in the case, each piece of material will be assessed to decide whether it should go into the CMP, be withheld entirely or be redacted, summarised or disclosed. The judge can also decide at any point to revoke a CMP and, indeed, must consider doing so after the disclosure exercise if he feels it is no longer in the interests of the fair and effective administration of justice in the case. Parliament has already decided to provide four CMPs in at least 14 settings, so we do not believe that we are introducing an entirely new concept.

I understand the origin of the new clause. In essence, it is about the provision for annual renewal of control orders under the Prevention of Terrorism Act 2005, which the Terrorism Prevention and Investigation Measures Act repealed and replaced. The 2005 Act was passed under a greatly accelerated parliamentary timetable, with only limited opportunity for debate. By contrast, the Green Paper provided a full consultation and it is fair to say that the Bill has been through parliamentary scrutiny in the other place and this House. It is also worth underlining that the Bill’s provisions relate to the procedures of the court, rather than the exercise of controls by the Executive. I note that in the preceding debate the right hon. Member for Tooting said that we are in a “very different context”.

The circumstances in which CMPs could be used are limited to national security-sensitive cases and for hearings in the High Court, Court of Appeal, Court of Session and Supreme Court. As I have said, the judge has the discretion to determine whether a CMP is appropriate.

This problem is not likely to go away. Claimants should have the continued ability to bring claims against the Government and matters should be scrutinised by the courts, as opposed to a return to the current system, where in some circumstances justice is simply not possible. We will continue to be faced with the unpalatable dilemma of either damaging national security or potentially paying out significant sums of money.

I should also make clear that, although the Opposition’s proposed new clause applies to clauses 6 to 12, it would also affect the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. Such proceedings are deemed to be section 6 proceedings because the case needs to be heard in CMP in order to ensure that its outcome is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned. Therefore, the effect of the proposed new clauses would be also to disrupt the Norwich Pharmacal clauses, which are intended to bring clarity and reassurance to intelligence-sharing partners.

International partners have expressed concerns about the Government’s ability to defend themselves and protect national security in cases where claimants make allegations against the state and its defence rests on national security material. We risk undermining the confidence of partners who share such information with us if they feel that we do not have in place secure processes to protect their material while defending Government actions.

[Simon Hughes]

I understand the Minister’s arguments. May I make two other points? I do not seek to defend the exact wording of new clause 4, but the argument that one cannot change something suddenly in the middle of a long court case could be dealt with by negotiating when any change would come into operation. I also remind him that it was the considered view of the Joint Committee on Human Rights that the significance of the change in the Bill merits our being very careful about the length of time for which we introduce the procedure.

[James Brokenshire]

We have all said in a number of ways in Committee and on the Floor of the House that we accept that this is not a perfect solution. We are not in the territory of perfect solutions when we talk about these issues.

I would make a number of points to the right hon. Gentleman. First, one purpose of the Bill is to provide assurance to our external partners on the sharing of intelligence material. Although I recognise the parallel that he draws with other court processes, that assurance is an important additional factor. If a time period was introduced, whether through a form of renewal or sunset, as one got towards the end of that period, there would be significant anxiety about what the future may hold. That would not satisfy the policy objective of giving that assurance to our external partners.

It is interesting that the Constitution Committee did not recommend a sunset clause. Its report said that the House may wish to consider the Bill being independently reviewed—not renewed—five years after it comes into force. The Government have accepted its recommendation in our new clauses.

New clause 9, which the hon. Member for Hayes and Harlington (John McDonnell) may wish to speak to shortly, seeks to provide for the collection of information. We believe that that matter is addressed in a different way by our new clauses, under which the Ministry of Justice will collect and publish data on the number of declarations granted, the number of revocations and the number of final closed judgments.

Regular reporting and a full review of the operation of closed material proceedings will provide an insight into how the provisions are working in practice and a clear mechanism to provide reassurance on their operation. I urge right hon. and hon. Members to support that approach and the Government’s new clauses.

[Mr Andy Slaughter (Hammersmith) (Lab)]

The Minister has kindly set out in some detail and in his usual authoritative way the basis for the new clauses. Members should not worry, because that is the high point of my compliments to the Government. It is downhill from here.

We had an extensive debate on this issue in Committee. In fact, we spent the whole of the last afternoon’s sitting on 7 February deliberating review, reporting and what is colloquially called sunset, but which, now that the Minister has corrected us, should be called renewal, which sounds much better. Two days before that, we debated the equivalent of new clause 9, which has been tabled by my hon. Friend the Member for Hayes and Harlington (John McDonnell).

Two things happened in the debate on review, one of which the Minister has alluded to, that did not happen at any other time during the Committee proceedings. The first is that the Minister agreed to go away and look at something that we raised and come back with further proposals. The second is that we won a vote. The hon. Member for Cambridge (Dr Huppert) referred to that earlier. For the record, with the support of the Liberal Democrats and in the absence of the hon. Member for North Antrim (Ian Paisley)—I do not want to prejudge how he may have voted—the vote was 9:9. The Chair, as is the convention, voted for the clause to be read a second time, but sadly, two or three seconds later, voted that it not be added to the Bill. However, it was good while it lasted.

There have been some technical changes to the new clause that we presented in Committee, and it is now new clause 4. For the avoidance of doubt, we will press it to a vote, because we believe that otherwise, proper review and renewal of this controversial part of the Bill will not be provided for.

On new clause 9, I put it to the Government in Committee that if they wanted to rely on CMPs, they should document them properly so that they had an evidence base for when they wanted to use them in the future. They were not persuaded. My hon. Friend the Member for Hayes and Harlington has referred to the contribution that Dr McNamara has made to our deliberations at all stages of the Bill. He is a legal academic specialising in open justice and proceedings related to terrorism matters, and his briefings have been extremely helpful, particularly on these provisions. He says about new clause 9:

“There does not appear to be any systematically compiled evidence of the scale of the use of secret evidence in the areas where it is currently used. There does not appear to be any publicly accessible formal or informal recording of the total overall use of CMP, or the total use within the different contexts identified by the Government. Nor is there any indication that such evidence exists out of the public eye…Where records have been requested the Executive has been largely unable or unwilling to provide records. Parliamentary questions in the Commons and the Lords have revealed a paucity of information is available to the current use of CMPs…As it stands, the Bill sets a very, very low threshold of openness for judgments under Clauses 6 and 7. Moreover, there is presently no central recording of how often CMPs are used in any courts, nor any centrally recorded information about them.”

He says that unless there is systematic recording, there is no practical mechanism by which the use of CMPs can be monitored. That is quite an indictment of the current position, and I can only repeat what I said in Committee and hope that it is more persuasive on the Floor of the House. The Minister should consider the matter for his own good, and the Government should take that point on board even if they are not prepared to support new clause 9 today.

On new clause 5, the Minister said that he would consider the issue of reporting and come back to the House, and he has done so. The new clauses on reporting that we pushed for in Committee, and those that the Liberal Democrats pushed for on a slightly different basis, were designed to emulate the situation in comparable legislation. That was why we specified a three-monthly review period. The Minister has come back to us with an annual review period, which seems somewhat parsimonious, if I may say so.

The Minister should take the point that this is controversial legislation—I would make that point even more clearly in relation to new clause 4—and touches on new ground. It contains many definitions that we are coming across for the first time, so it seems entirely appropriate that there should be more regular reviews. Perhaps we should be grateful for what we get, however, and at least the provision is for recurring 12-monthly reporting. So be it, and we do not intend to oppose new clause 5. We did not press our new clauses to Divisions in Committee but instead waited to see what the Minister would come up with. We are somewhat disappointed, but it is something, and the Government have at least listened.

New clause 6 does not do the job of new clause 4. It seems designed to act as a review for this part of the Bill, but it is wholly inadequate. Even for those who take a strong interest in this issue, including the hon. Member for Cambridge, the Government’s approach does not seem clear. I am not used to reading Liberal Democrat Voice in my spare time—that would be a terribly sad thing to do in my leisure hours—but I will read out two brief exchanges that put into focus the problem with what the Government are doing.

21:00

As long ago as last Thursday, the view of the hon. Member for Cambridge on this matter was that

“the Government has put forward amendments to require a complete review of CMPs every five years, and a yearly requirement for a report on the operation of CMPs…The requirement for reporting and reviewing will allow us to scrutinise whether the cases which the Government claims require a CMP really do exist, and it will let us review their operation. If the number of cases is higher than claimed—if the type of cases tried turn out to be inappropriate—we will know that and be able to get rid of it.”

There was a lot of other tosh as well. However, a woman called Jo Shaw, for whom I have a great deal of respect, has hounded the hon. Gentleman about his statements on the Bill and she replied swiftly last Saturday:

“There is no commitment to a review of the legislation every five years. By the government’s new clause there would be a review once, five years after the Bill is enacted. There is no provision for review after that. Given the extremely serious implications of this Bill, at a minimum there should be an annual sunset clause. The JCHR called for the Act to lapse every year unless parliament decides to renew it. That would ensure proper scrutiny of legislation with such far-reaching constitutional effects.”

I think the Labour party is rather nearer to the views of Ms Shaw than those of the hon. Member for Cambridge, although perhaps he is once again nearer to us and Ms Shaw. He may have moved position since last Thursday.

[Dr Huppert]

I thank the hon. Gentleman for constantly plugging my Twitter accounts, as he did earlier, and Liberal Democrat Voice, and I recommend that he looks at it more often. I know Jo Shaw very well and we speak quite regularly. I think she would share my position of trying to push the vote on amendment 1, rather than that of the hon. Gentleman, and I am sure that if one asked her she would say she does not agree with his position of being in favour of closed material proceedings in principle.

[Mr Slaughter]

I do not think that is for this debate, but good try. I should follow the example of my boss and try not to antagonise the hon. Gentleman if I want him to vote with the Opposition on this matter. That may be contrary to what he said last Thursday, but it is in line with his party’s policy, what he did in Committee, and what seems to be the current position in Liberal Democrat Voice. We have heard enough of that; let us consider the Joint Committee on Human Rights, which stated in a short but telling paragraph in its most recent report:

“We also reiterate the recommendation in our first Report that the Bill provide for annual renewal, in view of the significance of what is being provided for and its radical departure from fundamental common law traditions.”

I am not sure one needs to go much further than that, and that lies at the heart of new clause 4.

Anyone who has sat through this debate, or previous debates in the other place or Committee, cannot be under any illusion that this Bill is complex, controversial and important, above all, for the reasons given by the hon. Member for Chichester (Mr Tyrie): it attacks and deals with fundamental issues of fair and open justice. It is also, I am afraid to say, confused—perhaps deliberately so—and has had a very confused birth. The Minister said that, contrary to comparable legislation, this Bill has made slow, stately and clear progress, but I beg to differ.

I do not think that anyone would quarrel with my assertion that the Bill is complex. It is complex even for lawyers, 702 of whom wrote to the Daily Mail last week saying that they would not support this part of the Bill. Views have been expressed either way on it, and I respect the views of lawyers from the senior judiciary and the Supreme Court, as well as of human rights lawyers and special advocates. We are not short of legal opinion on this matter, and it is not of one mind. Overwhelmingly, however, it takes the view that this is territory into which we should proceed with great care and great caution.

I do not think that the Minister would deny that the legislation was controversial, either. He will find similar sentiments on it being expressed in normally Conservative-supporting newspapers such as The Mail on Sunday and normally Liberal Democrat-supporting newspapers such as The Guardian. Huge amounts of thoughtful concern are being expressed across the press about the provisions.

I have heard the Minister without Portfolio say many times that secret courts were undesirable and that we would not have them if we did not need them. Where we differ is on how we should use the provisions and how far they should go. Some say that they should not go any distance at all, while others say, as we do, that they should be as closely constrained as possible.

The Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) does not agree with my view that this is a confused measure. I am not going to repeat the vaudeville act that I so enjoyed doing in Committee, in which I pointed out the four different positions that the Liberal Democrats had held on the Bill, some of them simultaneously, or the four occasions on which the Minister without Portfolio had announced that he had seen the light and decided that he was previously wrong to be so terribly authoritarian and that he now had a package of measures that would ensure full judicial discretion and that CMPs were de facto, if not expressly in the Bill, to be used as a last resort. I think we have all seen through those posturings, which were adopted primarily for political purposes.

We have only to look through the list of amendments to the Bill and at what will be in the Bill after tonight—until such time, I hope, that some of it is removed again in the other place—to see that this is all hugely controversial. Yes, we have the six markers that were put down in the House of Lords, and I accept that two of those—the least far-reaching—have been accepted by the Government. The move from “must” to “may” opens the door to judicial discretion; there is agreement on that. There has been some peculiar dithering about equality of arms, which is a strange term to use in this context as it refers simply to the ability of both parties to apply to get into a CMP; it will have nothing to do with equality of arms once the CMP has been invoked. That proposal was put in, taken out and put in again by the Government. I am not making a point about that; it is in there now and the Government are supporting our amendments on that tonight, but—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Obviously there is a load of historical information that people might wish to discuss, but we need to stick to the new clauses before us tonight, rather than going back through the history. I am sure that that is where the hon. Gentleman is going to take us to next.

[Mr Slaughter]

I am indeed, Mr Deputy Speaker.

The point I was trying to encapsulate is that there is so much in the Bill that is new and highly controversial that it seems utterly right that we should not have to wait five years or have only a single process of review, and that we should have instead a process of renewal. That is to say that this House and the other place should have the opportunity to reject the Bill once they have seen it in operation.

[Dr Francis]

May I place on record the support of the Joint Committee on Human Rights for my hon. Friend’s amendment? It is extremely important and one that is part of my Committee’s most recent report.

[Mr Slaughter]

I am most grateful, and I think the whole House is grateful for the Joint Committee’s work: it has taken a forensic interest, produced three substantive reports and taken a huge amount of evidence. We would all be a lot poorer in discussing this matter were it not for its role.

The Joint Committee felt able to summarise the need for the annual renewal provision in one paragraph because it had highlighted the difficulties that arose from the rejection of the Wiley balance, the rejection of last resort, the rejection of “PII first”, and the rejection of the Wiley balance in the CMP, a matter that I believe we will have an opportunity to vote on when we press amendment 38 to a Division at the end of the debate. That has not been discussed at any length and all I will say is, as a paragraph of the Joint Committee’s report makes clear,

“The Special Advocates…consider that once a CMP is ordered, and the court has to decide which documents will be “open”…and which “closed”, the court should be required to perform the Wiley balance between national security on the one hand and the fair and open administration of justice on the other.”

That is a point that the right hon. and learned Member for Rushcliffe (Mr Clarke) constantly rejects in what appears to be a wilful misunderstanding of the way the PII process works, or indeed the way that the Wiley balance works. All of the proposals, which have had great support from the Joint Committee, the other place, many parties in this House and a substantial number of senior Members on the Government Benches, are dismissed out of hand by the Government in the belief that the new formulation, the revised new formulation or the revised, revised new formulation is good enough. For all those reasons, it will be necessary to have the annual review process.

Finally, not only are there issues with which we are now familiar, some of which we have just voted on, but the Government have slipped in new proposals. The hon. Member for Cambridge mentioned amendment 28. We believe, notwithstanding the Government’s reassurances, that the aim is to destroy the use of confidentiality rings. Government amendment 47, which we believe allows—[Interruption.] The Government know what their own amendment says. There are serious, additional clauses, which I am sure will be raised in the other place. There has not been the opportunity to raise them on the Floor of the House this afternoon. They have been introduced on Report and not properly debated.

[James Brokenshire]

I would just say that we have had an extensive debate on all the amendments on which the hon. Gentleman suggests there has been no debate. I wonder whether he might like to reflect on that.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. What I can reflect on is that we should be sticking to the new clauses before us, and, as I have said, I know that is what we are going to do now.

[Mr Slaughter]

I do not know how the Minister can say that when he has tabled new amendments on Report that introduce new concepts to the Bill. [Interruption.] Well, I am in difficulty here, because Mr Deputy Speaker is asking me to conclude. Perhaps this is a matter we can return to on Third Reading.

[Mr Deputy Speaker]

Order. It is the new clauses that are under discussion and it is the new clauses we need to stick to, because we have dealt with the previous amendments. We are just rounding off on the new clauses. I am sure that that is what the hon. Gentleman wants to do.

[Mr Slaughter]

It might be that we can return to this matter briefly on Thursday, because the other place will want to see what the Government have done to the Bill before it leaves this House. The introduction at a very late stage, both in Committee and on Report, of substantial changes to the Bill does not make for good legislation. At the very least, our new clause would make the provision subject to a process of annual review. The idea of a review after five years that might lead to nothing but a continuation, without any possibility of sanction from this House or the other place, is not reasonable, so I urge all Members to support not only new clause 4, but amendment 38.

21:15

[Mr Tyrie]

I wish to echo the words used a moment ago in support of the work of the Joint Committee on Human Rights, which has done some excellent reporting on this matter—its investigations and inquiries have been very good—for which I am very grateful to its members.

There are three issues before us—reporting, renewal and review—but I will touch only on renewal and review. I have been arguing for some kind of renewal or sunset clause from the moment I first grasped the implications of the Bill. In the opinion of very many people, including, most notably, the special advocates, who are the only people with extensive experience both of CMPs and PII, CMPs will not make Britain more just, and neither, in my view, will they make Britain more secure. I will be supporting new clause 4, as proposed by the JCHR and tabled by the Opposition Front-Bench team, to introduce a renewal clause, and I will be doing so, above all, because of something the Minister without Portfolio said early on in his speech. He said that the Government did not know what effect the new process would have. That is the clearest indication of something that needs very careful and periodic renewal and review.

I recognise the force of some of the arguments against annual renewal put by the Minister this evening—his thought had occurred to me before he uttered it —particularly in respect of this type of legislation, where there would be so much litigation. Without having thought through all the arguments as carefully as some others, I have a preference for renewal once a Parliament, but the Government have not offered a renewal clause at all. That is a mistake and I hope that they will reconsider.

The Government are offering a review, but even that is defective. For a review to be credible, it must be independent, and be seen to be independent, of the Executive, but clearly that will not be the case with this review. Under new clause 6(1), the Secretary of State acting alone will appoint the reviewer. In another context, this is exactly the problem that the Treasury Select Committee faced when the Chancellor created the Office for Budget Responsibility to make forecasts for him. The Chancellor wanted those forecasts to be seen to be independently prepared, but the Treasury Committee pointed out to him that if he, acting alone, appointed the chairman of the OBR, nobody would believe in its independence.

After discussions with the Committee, the Chancellor decided that the chairman of the OBR should be appointed jointly by him and the Committee. I urge the Government, when they reconsider this matter in the Lords, and their lordships, when examining new clause 6, to make similar provision for the appointment of the reviewer of CMPs. In my view, the reviewer should be appointed only by agreement between the Secretary of State and the JCHR.

[Dr Francis]

rose—

[Mr Tyrie]

I give way to the Chairman of the JCHR.

[Dr Francis]

I thank the hon. Gentleman for his kind words about the work of my Joint Committee. I am very attracted to the idea he has proposed. It is not the first time I have heard it, because we had this discussion recently, but I am pleased that he has proposed it on the Floor of the House.

[Simon Hughes]

indicated assent.

[Dr Francis]

I see at least one member of my Committee nodding. I will be putting it to my Committee next week that we ought to discuss the idea, and I hope that it will be endorsed and then officially become part of our work. After that, I hope that it will see the light of day and be endorsed by the Government—if not here, then in the other place.

[Mr Tyrie]

I am grateful for what appears to be, already, the Joint Committee’s support for the recommendation. It is an innovation from the Treasury Committee—Parliament has not dealt with any appointments in that way before—but I think that it adds something.

[Mr Slaughter]

What the hon. Gentleman has said is very persuasive, as is what was said by my hon. Friend the Member for Aberavon (Dr Francis). I think that we would support such action, and that the Government should consider it seriously.

[Mr Tyrie]

Well, I have one Front Bench aboard; that leaves another one. I do not see any movement just yet, but if I keep going for a couple more minutes, who knows? I might receive a response.

I think that it is in the interests of the Government to adopt this route, because it would bolster public confidence that the review and the reviewer were truly independent of the Government. My personal view is that five-yearly renewals, informed by a five-yearly review clause, should be satisfactory or at least adequate, but that is certainly the minimum that is required. What the Government have offered so far, which is just some reporting plus a five-yearly review, is clearly not enough. If they do not indicate that they are prepared to move this evening, I will vote against them. However, I hope very much that their lordships are also listening to the debate. They will have an opportunity to improve the new clause in a number of ways, and I hope that those will include the ways that I have suggested.

[John McDonnell]

I tabled new clause 9, which, as has been said, was debated in Committee. I congratulate Lawrence McNamara on his work—on the advice that he gave the House overall, and the evidence that he gave to the Joint Committee on Human Rights. He made a simple point. As we have seen tonight, this is an extremely contentious Bill concerning a contentious procedure, and it therefore warrants close monitoring. The best way of enabling that to happen is to establish a database at the earliest opportunity in order to ensure that the necessary information is recorded.

Lawrence McNamara made a fairly straightforward recommendation to the Committee. He suggested a template-form statement specifying the duration of open hearings and closed hearings, the number of witnesses heard in closed proceedings and the nature of those witnesses, the length of a closed judgment, and whether national security was an issue in the proceedings. The information whose collection is requested is not exactly highly controversial. The reason for requiring it is that it would inform the proposed review, and inform the wider media and the general public about the activities that were being undertaken as a result of the Bill. I am perplexed about why the Government did not simply accept that recommendation. Surely they would want to collect the information as well, in order to monitor their own legislation.

I welcome new clause 5. At least the Government are doing something about reporting. However, the report that they propose would be undertaken after 12 months of operation. I think that people need an ongoing database to which they can refer regularly, and which can be used when necessary to inform debates in the House and among the general public. The database would also feed into the review itself. It would enable a proper discussion to be held about whether the legislation was being implemented effectively, and about the scale of its implementation.

One of the arguments that we have heard tonight is that the CMPs will be used in only a small number of cases—15, according to the impact assessment, but that figure appeared to have been plucked out of the air when the Minister without Portfolio was interrogated further. Given the uncertainty about the import and breadth of the use of the legislation, there is obviously a need for an ongoing database to monitor the position, and that is all that the amendment does. For the life of me, I cannot understand why the Government are unwilling to accept it. I would expect a good Government to want to manage that information anyway.

With regard to the review, I wholeheartedly support the proposal for Joint Committee approval of the appointment. We had a similar discussion about the Bank of England, although without success, but the Treasury Committee was certainly successful with regard to the Office for Budget Responsibility. I suggest that this post is equally important and that, because the legislation is contentious, it is important that the person who reviews it has the full support of the House, and that could be secured by the Committee.

With regard to expiry and renewal, I remind Members that when the Prevention of Terrorism Act 2005 was introduced, we secured an annual debate on renewal. I cannot remember it being argued at the time that that was because the legislation did not have sufficient scrutiny in its early days. I know that it was introduced as emergency legislation, but subsequently there was fairly intense debate about whether it needed to be amended at different stages. The annual renewal was intended to give us an opportunity to see whether it was working effectively and to estimate the consequences for human rights, a critical debate that a number of us have engaged in year in, year out. It did not mean that there were any major amendments as such; it meant that Members of this House, and through them the general public, could satisfy themselves as to whether the legislation was operating in accordance with the original intentions. That is what an expiry and renewal clause would enable us to do. Again, I cannot for the life of me see that as contentious; it is simply another democratic fall-back or long-stop mechanism to ensure that we are fully consulted and that we are satisfied that the legislation has been implemented effectively.

On that basis, I will support the amendments tabled by Opposition Front Benchers and will not press new clause 9 to a Division, but I must express my disappointment that the Government have not gone very far in accommodating what I think would simply be an exercise in openness and transparency for a particularly contentious piece of legislation.

[Dr Huppert]

I wish first to put on the record my thanks to the Minister. In Committee he resisted many of my amendments, which was frustrating, but he did agree to take away my new clauses 1 and 2, which related to reporting and reviewing, and reflect on them. He has been true to his word, and new clauses 5 and 6 are the result. There are a couple of slight differences in the time scales, but, as I indicated in Committee, my aim was to try to achieve regular reporting and review, rather than being fixated on the exact number of months, and clearly reports that happen so quickly that there is not enough time to get information are not necessarily better. I am happy to settle for the annual report and pleased to see it.

I am also happy to see the five-yearly review, but I have a slight issue with it and would be grateful for clarification from the Minister. During a brief exchange earlier in the debate, he talked about the five-yearly approach being appropriate, and I think he said “once a Parliament”. As I read it, the wording of the clause indicates that the review would be done after five years and never again, so there is a difference between the two proposals. I hope that he will reflect on which it is intended to be.

The review might find that everything is working fine, and even those of us who are deeply uncomfortable with the whole concept might find that it does not work in the way we had anticipated, in which case we might not need regular reviews, but there might be things we need to consider, in which case we would like to see five-yearly reviews. I think it is important that each Parliament can reflect and conclude, for example, that this has gradually grown, that there are more and more cases, or fewer and fewer cases, or that something else has changed. I hope that the Minister will look at that. I am pleased that there will be the five-yearly review.

I would certainly support the idea of the independent reviewer being appointed more independently, as I think would my Liberal Democrat colleagues. I do not know whether the Government will be able to find a way to deliver that, but I hope that they will, because I do not think that that would cause any significant harm. I have some slight reservations about the five-yearly period.

New clause 4 is similar to the annual renewal proposal that I and my hon. Friend the Member for Edinburgh West (Mike Crockart) made in Committee and to the one proposed by the hon. Member for Hammersmith (Mr Slaughter), who was apparently performing vaudeville at some stage in Committee—I am afraid I must have missed it. I am still keen to see some form of regular renewal. The Government are resistant to annual renewal. I will certainly be supporting such a renewal, but if it continues to be a stumbling block, will they consider five-yearly renewal? I had a similar discussion about that on the same terms with the Minister in respect of the Terrorism Prevention and Investigation Measures Bill. In that case, he and the Home Secretary decided on a five-yearly renewal and perhaps he will make the same incredibly wise decision in this case, as it was clearly a good one.

21:30

We have not yet talked about the other possible venues for review. It is, presumably, open to Parliament to review and debate this legislation at any time; we could repeal some or all of this legislation at any time. The Intelligence and Security Committee has a particular role to play in this regard, and we will discuss it in far greater detail on Thursday, in the next part of this debate. That Committee could carry out an ongoing review and provide the sort of information that the hon. Member for Hayes and Harlington (John McDonnell) was arguing for in terms of monitoring what is happening with ongoing data. I would be grateful if the Minister examined whether there is a clear role for that Committee here, and I am sure he will have wise words to say about whether such an approach might be taken. It is not as good as a fully open process—one of the great benefits and disbenefits of that Committee is that it operates under conditions of secrecy—but it may provide some of the ongoing reassurance that those of us who remain deeply uncomfortable about much of this would wish to see.

I hope that the Chair of the Joint Committee of Human Rights, whose Committee I also had the pleasure of serving on, would agree that it, too, might have a role to play in keeping some of this under review. I mostly have thanks for the Minister, but we still need this idea of a regular renewal process just in case it turns out that things are going wrong.

[Mr Charles Walker]

In addressing the new clauses, the Minister said it was important to maintain confidence in our legal system—not only for us to do so, but for our many thousands of constituents to do so. That is why it is so important constantly to review the impact of closed material proceedings. The Minister gave a figure of 15 or more cases a year going through this process, which is not an inconsequential number. Since entering this place, I have seen changes to our legal system that have worried me, such as the introduction of double jeopardy, and the fact that we now seem happy to imprison people for 20 years and when we discover that they did not commit the crime for which they were imprisoned we do not think that they should have much compensation, if any. We are now going down the route of secret courts, so reviewing the impact and consequences of secret proceedings is enormously important, because many thousands of my constituents and many millions of people across the length and breadth of this country are made very nervous by this change, coming on top of other changes. What happens in other EU countries that have proceedings similar to closed material proceedings? What happens in other liberal western democracies?

I conclude my comments by saying that over the weekend a number of Conservative colleagues whom I respect and admire immensely were talking about the UK leaving the European Court of Human Rights. I would support that, but I smile when I find that on the Monday we are talking about bringing in secret courts, as the two things do not make comfortable bedfellows. Thank you very much for allowing me a brief moment on my feet, Mr Speaker.

[James Brokenshire]

We have had an interesting debate on these new clauses. I note that the hon. Member for Hammersmith (Mr Slaughter) described the Bill as complex, controversial and important and asked whether I would accept his analysis. I agree that it is complex, inasmuch as we are dealing with the need for closed material proceedings and the nature of sensitive material. It is controversial and it is clearly very important, as it relates to the assurances we are seeking to give to overseas partners and, obviously, to the nature of justice itself, which was very much a feature of the preceding debate. In the context of his description, I certainly recognise the need for an assurance to this House and to the public about how the powers and provisions in the Bill will be used in practice, as well as on the points that have been made about that.

In essence, that question was at the heart of our debate in Committee about the utility, effectiveness and proportionality of the use of closed material proceedings and the frequency of their use, which, in many ways, touches on the point alluded to by my hon. Friend the Member for Chichester (Mr Tyrie). We have given an indication of how many cases are expected per year, but clearly the reporting mechanism we envisage is intended to provide a sense of how many times the provisions will be used in that way.

I shall focus on a number of points raised during the debate and characterise some of the themes that emerged. The first is the question of whether there should be a formal renewal process. The Opposition have sought to interpose an annual renewal through new clause 4, but even if we accept the principle, that is simply too short a time period for the reasons given by many right hon. and hon. Members. The House would not be able to assess the effectiveness and operation of the provisions, given that we are talking about cases that are likely to run for an extended period of time.

When we considered the timing and effectiveness of a renewal provision, going back as far as the Terrorism Prevention and Investigation Measures Act 2011, we looked back at what happened under control orders, which is perhaps the closest parallel to an annual renewal debate on which we can draw. I recall the annual debates on control orders and I am sure that the hon. Member for Hammersmith will agree that some of them were sub-optimal, to say the least. In many respects, they became—[Interruption.] They were not, perhaps, the kind of fully formed debate that the hon. Member for Hammersmith is seeking through new clause 4, because, in essence, they became a cursory discussion at the time for the annual renewal of the provision. The debates were often short, were not necessarily well attended and did not necessarily apply the level of scrutiny that he is looking for. It is difficult to see, if he is talking about a renewal 12 months after Royal Assent, what information would be available to inform consideration properly of whether the legislation was effective. If we put aside the detail of the principle, there is a clear issue with the timing.

[Mr Slaughter]

I do not think that the Minister’s saying that the poor quality of debate in this House is a good reason for not having annual renewal is his best point. Will he deal with a point on which I do not think he agrees with me? New provisions have been introduced to the Bill, in Committee, where they at least received some debate, and today. Amendment 46, in particular, seems to allow material that is irrelevant to the proceedings to trigger a CMP, which is a massive change that has not been debated at all because we have not had time to do so. Is that not a reason for allowing renewal after a short time?

[James Brokenshire]

I hesitate to tread on amendments in the previous group, but ultimately it is for this House to determine the appropriate way to examine legislation. With other legislation, it might simply be the process of review through Government activity or Select Committee activity, but in certain cases, because of the sensitivity, import or nature of the legislation, there might be some form of additional statutory provision. We have certainly touched on areas of legislation where that has had some application. For example, some sort of mechanism or review for reporting back to the House how the legislation has been used applied to previous terrorism legislation and the Terrorism Prevention and Investigation Measures Act 2011. Because of the sensitive nature of the issues in this case, the Government have accepted that the normal scenario whereby Select Committees or other bodies are part of the general rolling assessment of legislation is not sufficient for this particular Bill. That is why we have sought to introduce the new clauses this evening.

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

Now that the Minister is talking about engaging Parliament and now that his right hon. and learned Friend the Minister without Portfolio is back in his place, is it not a good moment to address the idea that Parliament should be engaged by ensuring that the reviewer who can look into all the secret aspects is appointed with the agreement of a Committee of both Houses of Parliament—namely, the Joint Committee on Human Rights?

[James Brokenshire]

I would say that the provisions we have sought to introduce on the appointment of a reviewer are similar to, and in line with, other legislation such as the Terrorism Prevention and Investigation Measures Act, whereby the Secretary of State appoints the independent reviewer of terrorism legislation. The individual holding that office may well be the appropriate person to conduct this type of review or it may be someone else so that David Anderson or whoever is the holder of the office at that time is not overburdened, which could dilute the effectiveness of the independent reviewer’s analysis of the legislation. I hope that the Chairman of the Joint Committee on Human Rights would accept that the evidence and information provided by the independent reviewer has been instructive and relevant to that Committee’s consideration of the Bill.

I highlight the fact that the independent reviewer has provided quite an important perspective, looking at terrorism legislation as he does, which has added value not just to the Joint Committee’s review but to the debates we have had here. I note that David Anderson has been prayed in aid this afternoon and also in debates in the other place. We certainly recognise the value that an independent reviewer can have. I know from my discussions with other Ministers in other parts of Europe and elsewhere that the role of our independent reviewer is recognised for the importance and added value it brings in the analysis of legislation that touches on some sensitive issues.

21:44

I thank my hon. Friend the Member for Cambridge (Dr Huppert) for his contribution, both this evening and in Committee, highlighting the need for information to be available and the need for a mechanism for Parliament to assess these provisions. Equally, there could well be a role for the Intelligence and Security Committee in examining the effectiveness of the legislation. Clearly, it will be for the ISC to examine that, but I note, for example, that the Joint Committee on Human Rights has decided that it wishes to take evidence on the operation of the Terrorism Prevention and Investigation Measures Act 2011 after its first year. The Bill in no way prevents such scrutiny. It sets out the information and the mechanism that Parliament will be afforded to give assurance and to assess how the legislation is being applied.

[Mr Charles Walker]

I am sure I am pre-empting matters and that my hon. Friend was going to come on to this later in his speech. I asked what happens in other western European countries when it comes to reviewing closed court proceedings. Can he tell me what other European countries do on such matters?

[James Brokenshire]

It is difficult to answer my hon. Friend’s question. Parallels are difficult to draw in this respect. I can think of one European jurisdiction that is seeking to examine the appointment of an independent reviewer of its own terrorism legislation. We are unusual in having an individual who does such work. People are reflecting on the input from David Anderson, the current reviewer, and his predecessor, Lord Carlile, shining a light and having access to sensitive materials better to inform the debate on sensitive issues relating to terrorist legislation.

I am not seeking to avoid my hon. Friend’s question. It is genuinely difficult to draw parallels with the type of court processes and the review structure that we have in this country, and to say that another country deals with the issue by having an x year review or some sort of renewal system or independent reviewer. It is hard to make such an analysis, because countries and their systems are so different.

The hon. Member for Hayes and Harlington (John McDonnell) spoke about the provision of information and the need for a database. On closed proceedings and closed judgments, there is a database which is held and managed by the Home Office and will be updated three times a year in relation to closed judgments, to ensure that special advocates are able to look at summaries of legal principles in particularly sensitive judgments. Those will be added on a less routine basis to reduce the risk of the summary being linked to a particular case, because of the sensitivity of some of the details. It is intended that summaries of all future closed judgments will be entered into the database to inform debates and discussions and the work of the special advocates.

Part of the debate has been on the principle of whether there should be an annual sunset or renewal—whatever language we choose—or whether the system should be on a five-year basis, which I know that others have suggested as an alternative, although that option is not before the House tonight. The choice that the House has is whether to accept the Government’s new clauses on the provision of information and the review, which I hope it will, recognising that this is an addition that seeks to improve the Bill and the scrutiny and analysis that it provides.

Ultimately, if we were to introduce some form of renewal, we would have to face up to the message that that gives to some of our external partners on the control principle and the sharing of intelligence, given that one of the principles behind the changes being introduced is to give assurance to our external partners, recognising the point that David Anderson and others have made that, in essence, our relationship with a number of external partners has been affected by some cases. If we were to provide an annual renewal, it would materially impact on that. Equally, if we were to provide a further formal five-year renewal in the Bill, our judgment is that that would not provide the assurance to our external partners that is anticipated for our intelligence relationships.

[Mr Tyrie]

I am a little concerned that I am listening to a suggestion that the legislation is somehow for the benefit of our closest allies, the United States. It should be pointed out that the United States does not rewrite its law to take account of the fact that we send some of our intelligence material to it. Indeed, it is often argued that it is a good deal more leaky than we are. A former head of the CIA counter-terrorism centre recently remarked that he supposed that British intelligence must be very unhappy because it is often exasperated, quite reasonably, with its American friends, who are far more leak prone than it is. Nor has it sought to change its system of law to take account of our requests. Is that not one of my hon. Friend’s weakest arguments?

[James Brokenshire]

My hon. Friend says that it is a weak argument, but I disagree. An important part of the Bill is to ensure that justice is achieved in those cases where otherwise evidence would be excluded. Also, through the Norwich Pharmacal provisions, assurance is given that the control principle will be adhered to. That important provision needs to be considered as part of this segment of the Bill and when considering five-year renewal or otherwise. In essence, once we get towards the end of the five-year period, the assurance will not be there. People will be considering what the situation would be, and the issues around the control principle and the assurance that we seek to give to external partners are relevant factors for consideration in this context.

On the point made by the hon. Member for Cambridge on the ISC, under the Bill the ISC’s function will be to oversee the expenditure, administration, policy and operations of the security and intelligence agencies and other Government activities in relation to intelligence or security matters. In the course of that work, it may come across information relevant to this issue and it would be open to the committee to report on those matters to Parliament or to the Prime Minister if it found evidence that the Government may have been abusing the CMP. The ISC has the ability to examine some of these issues if that helps for the scrutiny that is applied in respect of the Bill.

The hon. Member for Hammersmith highlighted the conditions for a declaration to be made. They can be met on material that a party other than the applicant is required to disclose. Amendment 46 makes it clear that the two conditions for a declaration to be made can be met and based on such material. I do not know whether that is helpful to him in the context of the points that he made.

Ultimately, the House will need to determine whether the Government’s new clauses are sufficient. We believe that they are; they allow for a reviewer to look at the legislation in five years’ time. Following the report that the reviewer provides, it is open to the House to re-legislate if it considers that change is needed. Equally, we judge that the legislation on the provision of information gives assurance within an appropriate period on how the Bill will be used.

Others may take a contrary view, but we judge that the new clauses are appropriate. We recommend them to the House, because it is important for us to have the transparency and that ability to consider. That is precisely what the new clauses will give us.

Question put and agreed to.

New clause 5 accordingly read a Second time, and added to the Bill.

New Clause 6

Review of sections 6 to 11

‘(1) The Secretary of State must appoint a person to review the operation of sections 6 to 11 (the “reviewer”).

(2) The reviewer must carry out a review of the operation of sections 6 to 11 in respect of the period of five years beginning with the day on which section 6 comes into force.

(3) The review must be completed as soon as reasonably practicable after the end of the period to which the review relates.

(4) As soon as reasonably practicable after completing a review under this section, the reviewer must send to the Secretary of State a report on its outcome.

(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.

(6) Before laying a copy of a report before Parliament under subsection (5), the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.

(7) The Secretary of State may pay to the reviewer—

(a) expenses incurred by the reviewer in carrying out functions under this section, and

(b) such allowances as the Secretary of State determines.’. —(James Brokenshire.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 4

Expiry and renewal

‘(1) Sections 6 to 12 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that sections 6 to 12 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.—(Mr Slaughter.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

21:56

Division 171

Ayes: 231

---

Labour: 207
Liberal Democrat: 8
Scottish National Party: 5
Conservative: 4
Plaid Cymru: 3
Social Democratic & Labour Party: 2
Independent: 1
Alliance: 1
Green Party: 1

Noes: 296

---

Conservative: 252
Liberal Democrat: 40
Democratic Unionist Party: 3
Independent: 1

22:13

Proceedings interrupted (Programme Order, this day).

The Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Clause 7

Review and revocation of declaration under section 6

Amendment made: 48, page 7, line 3, at end insert—

‘(7) In relation to proceedings before the Court of Session—

(a) the reference in subsection (3) to the completion of the pre-trial disclosure exercise is a reference to the fixing of a hearing to determine the merits of the proceedings, and

(b) the reference in subsection (6)(b) to when the pre-trial disclosure exercise is to be considered to have been completed is a reference to what constitutes a hearing to determine the merits of the proceedings.’.—(James Brokenshire.)

Clause 8

Determination by court of applications in section 6 proceedings

Amendment proposed: 38, page 7, line 18, at end add

‘and that damage outweighs the public interest in the fair and open administration of justice’.—(Mr Slaughter.)

Question put, That the amendment be made.

22:13

Division 172

Ayes: 227

---

Labour: 205
Liberal Democrat: 7
Scottish National Party: 5
Conservative: 3
Plaid Cymru: 3
Social Democratic & Labour Party: 2
Independent: 1
Alliance: 1
Green Party: 1

Noes: 295

---

Conservative: 251
Liberal Democrat: 39
Democratic Unionist Party: 4
Independent: 1

Clause 11

General provision about section 6 proceedings

Amendments made: 49, page 9, line 7, leave out ‘section 12’ and insert—

‘sections (Reports on use of closed material procedure) to 12’.

Amendment 50, page 9, line 11, at end insert—

‘(c) proceedings on, or in relations to, an application for a revocation under section 7, and

(d) proceedings on, or in relation to, a decision of the court to make a revocation under that section of its own motion.’.

Amendment 51, page 9, line 13, leave out ‘section 12’ and insert—

‘sections (Reports on use of closed material procedure) to 12’. —(James Brokenshire.)

Clause 12

Sections 6 to 11: interpretation

Amendments made: 52, page 9, line 17, leave out ‘11’ and insert—

‘(Review of sections 6 to 11)’.

Amendment 53, page 9, line 41, leave out ‘11’ and insert—

‘(Review of sections 6 to 11)’.—(James Brokenshire.)

Clause 16

Review of certification

Amendment made: 54, page 14, line 9, leave out ‘and 11’ and insert—

‘, 11 and (Review of sections 6 to 11)’.—(James Brokenshire.)

Bill, as amended, to be further considered tomorrow.

Business without Debate

Monday 4th March 2013 Commons Chamber

European Union Documents

Motion made, and Question put forthwith (Standing Order No. 119(11)),

Markets in Financial Instruments

That this House takes note of European Union Documents No. 15938/11, a draft Regulation on markets in financial instruments and amending regulations [EMIR] on OTC derivatives, central counterparties and trade repositories, and No. 15939/11 and Addenda 1 and 2, a draft Directive on markets in financial instruments repealing Directive 2004/39/EC; notes the importance to the UK economy of stable and well functioning financial markets; and welcomes efforts to improve transparency, while supporting competition and user choice, as part of the global post-crisis regulatory reform agenda.—(Greg Hands.)

Question agreed to.

Electoral Commission

Motion made, and Question put forthwith (Order, 12 February, and Standing Order No. 118(6)),

That an humble Address be presented to Her Majesty, praying that Her Majesty will appoint Gareth John Halliwell to be an Electoral Commissioner with effect from 13 March 2013 for the period ending on 12 March 2017. —( Greg Hands.)

Question agreed to.

Delegated Legislation

[Mr Speaker]

With the leave of the House, we shall take motions 5 to 11 together.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Libraries

That the draft Legal Deposit Libraries (Non-Print Works) Regulations 2013, which were laid before this House on 28 January, be approved.

Social Security

That the draft Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2013, which were laid before this House on 28 January, be approved.

That the draft Social Security (Contributions) (Re-rating) Order 2013, which was laid before this House on 28 January, be approved.

Financial Services and Markets

That the draft Financial Services and Markets Act 2000 (Financial Services Compensation Scheme) Order 2013, which was laid before this House on 24 January, be approved.

That the draft Financial Services and Markets Act 2000 (PRA-regulated Activities) Order 2013, which was laid before this House on 24 January, be approved.

That the draft Financial Services and Markets Act 2000 (Threshold Conditions) Order 2013, which was laid before this House on 28 January, be approved.

That the draft Financial Services Act 2012 (Mutual Societies) Order 2013, which was laid before this House on 28 January, be approved.—(Greg Hands.)

Question agreed to.

Delegated Legislation

Ordered,

That the motion in the name of Secretary Vince Cable relating to Financial Assistance to Industry shall be treated as if it related to an instrument subject to the provisions of Standing Order No. 118 (Delegated Legislation Committees) in respect of which notice has been given that the instrument be approved.—( Greg Hands.)

Draft Voting Eligibility (Prisoners) Bill (Joint Committee)

Motion made,

That this House concurs with the Lords Message of 15 January 2013, that it is expedient that a Joint Committee of Lords and Commons be appointed to consider the draft Voting Eligibility (Prisoners) Bill presented to both Houses on 22 November 2012 (Cm 8499), and that the Committee should report by 31 October 2013.

That a Select Committee of six Members be appointed to join with the Committee appointed by the Lords;

That the Committee shall have power-

(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report from time to time;

(iv) to appoint specialist advisers; and

(v) to adjourn from place to place within the United Kingdom;

That Mr Crispin Blunt, Steve Brine, Lorely Burt, Mr Nick Gibb, Sir Alan Meale and Derek Twigg be members of the Committee. —( Greg Hands.)

Hon. Members: Object.

European Scrutiny

Ordered,

That Sandra Osborne be discharged from the European Scrutiny Committee and Mrs Linda Riordan be added.—(Geoffrey Clifton-Brown, on behalf of the Committee of Selection.)

Extension of the Tyne and Wear Metro to Washington

Monday 4th March 2013 Commons Chamber

22:27

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

I am pleased to be able to present this petition on behalf of my constituents, asking the House of Commons to urge the Government to examine the feasibility of bringing the Tyne and Wear Metro to Washington and bringing the Leamside line back into use. The petitioners and I believe that doing so would attract businesses and customers to the area, as well as helping my constituents to travel to work in other parts of the region. This petition is accompanied by one along the same lines that has the signatures of 348 readers of the Washington Star newspaper.

The petition states:

To the House of Commons:

The Petition of residents of Washington and Sunderland West constituency and the surrounding areas,

Declares that there are inadequate public transport links for residents in Washington to access the rest of the Tyne and Wear area, increasing reliance on personal transport and reducing employment and economic opportunities for the town and its residents.

The Petitioners therefore request that the House of Commons urges the Secretary of State for Transport to seriously explore the feasibility of extending the Tyne and Wear Metro to the town of Washington utilising the old Leamside railway line.

And the Petitioners remain, etc.

[P001160]

Health Professionals: Regulation

Monday 4th March 2013 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Greg Hands.)

22:29

[Stephen Barclay (North East Cambridgeshire) (Con)]

In the wake of the Francis report and the news that 14 more trusts are under investigation due to unnecessary deaths, it is clear that our current system of health care regulation has failed. More importantly, it means that the NHS has failed its patients, and that the Care Quality Commission is clearly not fit for purpose. I have seen documents that suggest that 25 hospitals with abnormally high mortality rates were highlighted to the then Secretary of State, the right hon. Member for Leigh (Andy Burnham) in March 2010. Seven of the 14 trusts now under investigation were on that list. He referred them at the time to the CQC, which confirmed it had:

“no current concerns about these trusts which would require intervention.”

Some of them, however, have had significantly high mortality rates for more than a decade. Sir David Nicholson tried to paint Mid Staffordshire as a singular case. Minutes of meetings imply that the concerns of patients’ families were dismissed as simply lobbying. Perhaps more worryingly, it appears there has been not just incompetence, but a culture of cover-up in the NHS.

Let me give just one example. Professor Sir Brian Jarman, a world-respected authority on mortality data, has raised with me allegations of trusts fixing their mortality figures. In essence, trusts relabelled deaths as palliative care after the definition was widened in 2007. Hospitals’ standard mortality rates would fall, as palliative care deaths were considered normal and not down to poor care. Experts suggest that a figure of approximately 4% of deaths should be classified in this way, yet at the Medway NHS Foundation Trust, one of the trusts now under investigation, it jumped to 37%, which suggests that in one month hospitals had been transformed into hospices.

The paper reclassification improved hospitals’ mortality score by approximately a third, yet nothing had actually changed on the wards. In other words, they were fiddling the figures and, as a result, were masking poor care. The same tactic was used by Mid Staffordshire to obscure what was really going on, and the number of deaths classified even now as palliative care across England is still higher than expected, and higher than in comparable international countries. That needs to be looked at urgently. Until that happens, we cannot be confident that the 14 trusts currently under investigation—seven of which, we were told in 2010, were not a concern—are all that we need to worry about.

Perhaps more distressing is that management consultants profited from masking the real causes of those deaths. The CHKS advisory group visited hospitals to advise not on how to reduce mortality and save lives, but on how to make the figures look more normal.

[James Wharton (Stockton South) (Con)]

My hon. Friend is a respected member of the Public Accounts Committee, and I am sure he knows from his work on the Committee that target-driven culture, in whatever Government Department, can often lead to anomalies and inefficiencies. Is it not extremely worrying that the way the targets were framed in the case he highlights led not only to inefficiencies, but to actual loss of life? Would he suggest that this is not just a matter for the individual hospitals he has named, but for the entire target-driven process, which needs to be re-examined by the Government and the Minister?

[Stephen Barclay]

My hon. Friend is absolutely right. The deaths, in part, came from a target culture. The targets were not set with that intention, but that was the consequence.

We have to ask about the people responsible for fiddling the figures to meet those targets. Between 2007 and 2009, the chairman of the advisory board at CHKS was Niall Dickson—not a doctor, but a journalist—and he is now the chief executive of the General Medical Council. Has the Minister reviewed the role of CHKS in advising hospitals on how to reinterpret death rates, and is someone involved in such an organisation the right person to be regulating doctors today?

Not surprisingly, following the Francis report, there has been a flurry of activity to explain what new systems will be put in place, but as an ex-regulator I know that such changes, while introduced in good faith, are likely to be flawed. If we are to ensure patient safety, we need a culture change. The ultimate regulator is a well-informed patient. The ultimate inspectors are whistleblowers on the ground. We need quality transparent data for patients to be able to make real, informed choices about where to be treated and how to hold the NHS to account. It is remarkable that a report last week found that two thirds of doctors and nurses at some hospitals would not recommend their own hospital to their family and friends. What does that say about the regulation of those hospitals? It is common knowledge among NHS insiders that certain doctors are good and certain doctors and surgeons should be avoided. Why should patients be kept in the dark about that sort of information?

Those involved in projects such as the Dr Foster unit at Imperial are world leaders in providing health information, and the decision to publish heart surgery outcomes was welcome, but the status quo does not go far enough. Data are available privately showing outcomes broken down by hospital, department, ward and even individual doctor. I urge the Minister to start to make those data public. They have never been published. Those in the profession know what they contain; it is time we trusted the public with the truth. Of course, they need to be presented in a meaningful way, but there is a duty to explain them, not hide them. We have seen with heart surgery what a positive impact such transparency can have.

I ask the Minister to reflect on the following point. We now have the safest heart surgery in Europe, partly because we have data transparency, but that is down to consultant anaesthetist Steve Bolsin, who exposed high death rates for child heart surgery. That information, which was published in Private Eye, led to a public inquiry. The publication of those figures has clearly driven up standards, yet the impetus for change was not the Department of Health or the Royal College of Surgeons, but a whistleblower who was prepared to speak up—incidentally, is it not revealing that he no longer works for the NHS?

[Charlotte Leslie (Bristol North West) (Con)]

I thank my hon. Friend for his powerful and informative speech. Does he agree that what matters is not only ensuring that data are transparent for patient groups, but the quality of assessments, where we have seen a failure? Hospitals with obviously high mortality rates were deemed acceptable by assessors even before the fiddling of figures. Is that not partly because people not qualified to know the ins and outs of what goes on in, say, the operating theatre are going round, ticking the boxes and saying, “That’s all fine”, when in fact it is not? With the expert eye of another experienced clinician in the same field doing the assessment, very different outcomes would arise. It is because they have that knowledge and expertise that organisations such as the Royal College of Surgeons have been commissioned to carry out reviews.

[Stephen Barclay]

My hon. Friend is right. A lot of the people at the Care Quality Commission doing the clinical assessments are not clinically trained, and, even when they have a clinical qualification, it often does not relate to what they are looking at—for example, we might have doctors looking at baby units. Her point applies to coding as well: as seen in media reports last week, the people reinterpreting the coding are often not clinically trained.

Whistleblowers have a unique vantage point on what is happening with patient safety, but for too long we have hypocritically lauded their contribution publicly while silencing or gagging them in practice. The Commission for Health Improvement found problems at Mid Staffordshire back in 2002, a peer review of critically ill children by the strategic health authority criticised Mid Staffordshire in 2003 and 2006, and whistleblowers at Mid Staffordshire raised concerns as far back as 2005, yet the warning signs were not acted on. Many members of staff simply chose to close ranks. There appeared to be a bullying culture which discouraged people from coming forward, and those who did were threatened. One nurse at Mid Staffordshire summed up the position by saying:

“The fear factor kept me from speaking out”.

This is not an isolated case. It is almost beyond parody, but the Care Quality Commission, the body to which whistleblowers might turn, itself used gagging clauses. It disgracefully smeared Kay Sheldon, a member of its board. When she had the courage to speak out, it was suggested that she had mental health problems. That is the culture. As my hon. Friend the Member for Bristol North West (Charlotte Leslie) pointed out during Prime Minister’s Question Time last Wednesday, three reports commissioned to mark the 60th anniversary of the NHS in 2008 which identified problems appear to have been buried. One of those reports, to Ara Darzi, referred to a “shame and blame” culture, and said that fear was pervading the NHS and at least certain elements of the Department of Health. Why were those reports buried?

Figures I obtained after a two-year battle in Whitehall showed that £15 million of taxpayers’ money had been spent over three years to gag whistleblowers. Why are we spending £5 million a year to silence those who are brave enough to speak out? We hide behind the guidance which says that the Public Interest Disclosure Act 1998 protects them, but, as we have seen in the Gary Walker case, trust lawyers threaten and intimidate whistleblowers although they know about that protection. I welcome the Secretary of State’s recent letter, but I must point out that gagging clauses have no place in the NHS today.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for bringing this important matter to the House’s attention. Does he agree that, at a time when mortality levels in the NHS are the highest they have been for years, the restoration of public confidence in the service is imperative? What steps does he think the Government should take to ensure that it is restored, and people no longer feel that it is dangerous to go to hospitals in our constituencies?

[Stephen Barclay]

The answer is to tell the truth. Constituents come to my surgery—I am sure that that the hon. Gentleman has the same experience—and talk about going to visit a husband of many years and finding him naked from the waist down, or taking soup in to feed patients. They know the issues. Let us be candid. There are many wonderful things about our NHS, but let us not hide the failures and concerns. Let us not have a culture of cover-ups that silences the whistleblowers.

An official NHS circular from 1998 states:

“It is not contrary to the Department of Health’s policy for confidentiality clauses to be contained in severance agreements.”

Will the Minister ensure that that is scrapped? The letter from the Secretary of State does not force trusts to take such action, and I think it is high time that we made the position on gagging clauses clear and beyond doubt.

Regulatory failure across hospitals nationally shows the need for greater data transparency, so that we can see the true patient outcomes and protect staff who speak out. That will secure a higher-quality and safer NHS for patients across the board. We need to move the health service out of its cover-up culture and into the light, and to ensure that individuals are held to account. The Prime Minister has said that sunlight is the best disinfectant, and that applies on our hospital wards. It is best for us to have well-informed patients and staff who are able to voice their concerns. It is clear from what happened at Mid Staffordshire, at the 14 hospitals that are under investigation, and at the 25 that were drawn to the attention of the Secretary of State that concerns about those hospitals—along with the many other concerns that are being expressed around the country—have not been acted on so far. I hope the Minister will be able to reassure us that he will now speed up such action.

22:44

[The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)]

I congratulate my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) on securing the debate. He made a number of serious allegations, but he was absolutely right to say that it is completely unacceptable to manipulate any patient information deliberately in order to falsify reports of a trust’s performance, and there will be serious consequences for any part of the NHS that is found to be doing so. He was right to say that if we are to have an open and accountable NHS in which patients and the public know how hospitals are doing, the hospitals must be open and honest about their performance.

My hon. Friend was also right to say that we want the NHS to have the lowest mortality rates in Europe. Sir Bruce Keogh, the NHS medical director, is currently leading an investigation into hospitals with higher mortality rates to understand why they are higher and whether they have all the support they need to improve. To pick up on the point that my hon. Friend the Member for Bristol North West (Charlotte Leslie) raised in her intervention, that will involve senior clinicians with background expertise going into those hospitals to ensure that proper scrutiny is brought to bear.

[Charlotte Leslie]

Will the Minister give way?

[Dr Poulter]

I will, very briefly, although my hon. Friend did not notify me previously that she intended to intervene.

[Charlotte Leslie]

I thank the Minister for his courtesy and apologise for not notifying him in advance. Does he have any indication of where our current mortality data lie in relation to comparable countries and, if not, will he speak with Sir Brian Jarman of the Dr Foster website, because I believe that he has some rather depressing news on that front and it is probably time to start speaking the truth about that as well?

[Dr Poulter]

I thank my hon. Friend for her intervention. We have made it clear, both in opposition and in government, and indeed in the health care mandate, that we do not find it acceptable that Britain, compared with some other European countries, is not doing well when it comes to survival rates for a number of diseases, including some types of cancer and some respiratory diseases. We all know that the NHS must achieve more in that regard. It is not necessarily an isolated issue that applies to one particular trust. That is why we made it a priority in the NHS mandate set by my right hon. Friend the Secretary of State for Health at the end of last year, but the priority should be clinical outcomes, and a key priority is improving mortality for a number of diseases, particularly those that are attributable to patients with long-term conditions.

I thought that it might be worth discussing in more detail a few of the points my hon. Friend the Member for North East Cambridgeshire raised. He talked in particular about the Francis report. For everybody who cares about the NHS and works in it, as I still do, the day the Francis report was published was a humbling one. There was failure at every level: a systemic failure, a failure of regulation, a failure of front-line professionalism, a failure of management and a failure of the trust board. There are systemic problems with the NHS that we need to focus on and address. That is what my right hon. Friend the Secretary of State will outline when we give our further response to the Francis report later this month.

My hon. Friend the Member for North East Cambridgeshire was also right to highlight that there has been too much covering up in the past and not enough transparency. If we are to put right some of the systemic failings highlighted in the Francis report, we need to be grown up enough to acknowledge that sometimes the NHS does not come up to standard and the care that we would expect to be delivered to patients is not always good enough. If we care about our NHS, and if we want an NHS we can continue to be proud of and that will continue to be the envy of the world, we must acknowledge when things go wrong and ensure that we face up to the problems in an open and transparent way. We must ensure, as many hospitals with a more transparent culture do, that good audit and proper incident reporting are in place for when things go wrong. We must ensure that, rather than having recriminations and closed doors, bad things are learned from, and that where things have gone wrong and patients have not been treated properly, hospitals and the whole the NHS make more active efforts to deal with problems and failures of care.

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

I thank the Minister for his courtesy in giving way. It might be helpful, Mr Speaker, if you would give us guidance on whether pre-notification is still required. What the Minister says is all well and good but why is it, after so many people died in such an unacceptable way, that nobody seems to have carried the can or taken responsibility?

[Mr Speaker]

Order. I thought, in the circumstances, that I would let the debate flow, but for clarification I ought to say that there is a requirement that a Member who wishes to make a speech in someone else’s Adjournment debate secures agreement in advance, but there is no such requirement—this point is widely misunderstood—in respect of an intervention. It is purely for the Minister to decide whether to take an intervention. No impropriety has been committed by the hon. Member for Bristol North West (Charlotte Leslie); her virtue is unassailed.

[Dr Poulter]

Indeed, and thank you, Mr Speaker. I will, of course, do my best to take as many interventions as possible, but my hon. Friend the Member for New Forest East (Dr Lewis) will be aware that I have been generous so far and that the time allotted to Adjournment debates means that it is difficult to give as full an answer as possible to interventions. For that reason, it is useful to have some notice that an hon. Member intends to intervene.

My right hon. Friend the Prime Minister made the point clearly, as did Robert Francis in his report, that it was not for the Francis report to highlight individuals or blame them for what happened; the report was about ensuring that there was a clear acknowledgement that there had been systemic failure, which I talked about earlier. It was a failure of professionalism on the front line; a failure of the trust’s board; a failure of regulation and the regulators; and a failure of management at the trust. When systemic failure occurs, it is right that we put in place systemic solutions, and that is what my right hon. Friend the Secretary of State will do later this month.

My hon. Friend the Member for North East Cambridgeshire made the key point that a real culture change was required, and that that is about having transparency and openness in the NHS. He is right to highlight those points. If we want transparency and openness, we need to look at some of the steps that have already been taken. We know that the Public Interest Disclosure Act 1998, which in theory gives protection to whistleblowers and people who want to speak out, has not been effective. Legislative approaches have not been enough to ensure that people feel free to speak out. Legislation has so far not been effective in creating that culture of openness and transparency that we all believe is necessary.

However, we have seen two things in the past six months that will make a real difference, the first of which is the contractual duty of candour, which will be introduced in the NHS for hospital trusts. It will mean that there is support for openness and transparency as part of the NHS contract. The second is the strengthening of the NHS constitution, which brings direct support to the cause of whistleblowers. Those things will be further strengthened in our further response later in the month to what happened at Mid Staffordshire.

[Stephen Barclay]

I very much welcome the Minister’s assurance that there will now be changes for whistleblowers. I repeatedly raised my concerns with Sir David Nicholson in the Public Accounts Committee, so why did he continually tell me that there was no problem with the guidance or the legislation, and that adequate protection was in place for whistleblowers? The Minister is now accepting the need for change, but why did the chief executives tell me that there was no problem?

[Dr Poulter]

I say to my hon. Friend that the Department of Health has, like everyone who works for it, made it clear that gagging clauses are not and have never been acceptable in the NHS. There is a distinction to make between confidentiality clauses, which might be part of any financial settlement with anyone who works in either the commercial sector or the public sector, and a gagging clause. It is the duty of any front-line professional, according to and as part of their registration with the General Medical Council or the Nursing and Midwifery Council, to speak out when there are issues of concern. That is a part of good professionalism. That is what being a good professional is about. It is about someone saying that they recognise that there has been unacceptably poor care in a hospital or a care setting and that they have a duty, because they are a registered doctor or nurse, to speak out to highlight where problems have occurred. The point is that at Mid Staffordshire there was clearly a failure of that professionalism not only on the front line but at every level. Gagging clauses have never been considered by the Department of Health, certainly under the current Government, to be an acceptable part of the NHS. That was made very clear in a recent letter written by my right hon. Friend the Secretary of State to NHS hospitals and chief executives.

[Dr Phillip Lee (Bracknell) (Con)]

On the subject of gagging clauses, did the settlement that formed part of the severance payment of the former chief executive of Mid Staffs include a gagging clause? If the Minister cannot tell me that today, will he put it in writing?

[Dr Poulter]

I shall endeavour to write to my hon. Friend to clarify as I do not have the information immediately to hand. That does not detract from the fact, however, that a gagging clause in any form is unacceptable to this Government, should be unacceptable to everybody in this House and is unacceptable to every doctor and nurse who works in the NHS. We will continue to do all we can through the contractual duty of candour and through strengthening the NHS constitution to make it easier for NHS staff to feel that they can speak out openly and feel supported in doing so, so that we have an open and transparent NHS of which we can be proud.

My hon. Friend the Member for North East Cambridgeshire also raised a very important point about open and transparent data on surgical outcomes. It was Professor Sir Bruce Keogh, the current NHS medical director, who put together the purple book of cardiac surgery, which has made a huge difference through greater transparency of outcomes in that specialty. That was in reply to the findings of the Bristol heart surgery inquiry, and it is regrettable that we have not seen similar advances in openness and sharing of data in other specialities in the NHS. That is not necessarily because the data do not exist, because they often do. In some specialties, such as urogynaecology, national databases are being put together to consider the long-term data on certain operations, which, to some extent, will give data on individual surgeons.

In the NHS, we often have a plethora of data and a lot of audit information that is collected at a local level, and we must ensure that those data are used in a better way in future. A lot of work can be done to add transparency and to share audit data in different trusts so that they are openly comparable to build a national picture of certain types of care and how we can improve patient care. That was a good point that was well made, and I know that Sir Bruce Keogh is continuing and will continue to develop that work in his role on the NHS Commissioning Board. I had a very encouraging meeting recently with a number of senior surgeons who recognise the importance of such work in their specialties. I am sure that the NHS will continue to develop it at a greater pace in the future, not least because of what we have heard from the Mid Staffs inquiry.

In conclusion, throughout the debate the point has been made that we have legislation in place to protect whistleblowers, but it has not been effective—[Interruption.] My hon. Friend the Member for Bracknell (Dr Lee) says from a sedentary position that it does not work. He is absolutely right—it has not been effective and that is why we are considering the Mid Staffs inquiry and the issues of culture that have existed and that have failed and let down patients. We will have a robust response to those failings to put right what has gone wrong and to ensure as best we can that another Mid Staffs will never happen again in the NHS. I am sure that we will all support what our right hon. Friend the Secretary of State says in his further response later this month.

Question put and agreed to.

22:58

House adjourned.

Written Ministerial Statements

Monday 4th March 2013 Written Statements

Monday 4 March 2013

Community Amateur Sports Clubs

Monday 4th March 2013 Written Statements

[The Economic Secretary to the Treasury (Sajid Javid)]

The Government are committed to delivering and maintaining a real sporting legacy after the London 2012 Olympic and Paralympic success. An important part of securing this legacy is to encourage greater participation in sport at a community level, and local sports clubs have an important role to play in this.

The Community Amateur Sports Club (CASC) scheme provides a number of charity-type tax reliefs to support local sports clubs. In order to access these tax reliefs clubs must meet certain conditions and must register with HM Revenue and Customs (HMRC).

However, some of the eligibility rules in the legislation are unclear and cause confusion. This makes it difficult for clubs and HMRC always to be sure about whether a club is entitled to relief. Clearer, more certain rules would help existing and prospective clubs to be confident about what they need to do to qualify, and would help ensure that the scheme fully achieves the Government’s aim of supporting and encouraging sport at a community level.

Some areas cannot be clarified without legislation. To provide certainty as quickly as possible, the Government will include provisions in the Finance Bill, to be published on 28 March, allowing clearer detailed rules to be set through secondary legislation. HMRC will then publish a consultation document after the Finance Bill is published setting out proposals for these rules. These proposals will cover a range of issues, including:

The maximum annual fee, to include the costs of participation, which a club can charge and still be considered a CASC. The consultation will seek views on a range of maximum fees up to £1,040 (£20 per week). Recognising that some sports have higher costs, CASCs will be able to charge more than the maximum annual fee if they have measures in place to allow people on low and modest incomes to participate fully at a cost of no more than the maximum fee.

The rules and limits for CASCs on generating income from social and non-sporting activities will be updated to provide clarity. The consultation will explore a number of possible limits. Where clubs generate income over the limits, the consultation will also explore how clubs can separate this activity into a wholly-owned subsidiary company.

The consultation will include proposals for more generous rules for travel expenses, and changes to allow clubs to make limited payments to players.

Following the consultation, the Government would expect regulations to be laid in the autumn, setting out detailed rules, subject to the usual parliamentary processes.

As well as providing certainty for existing CASCs, the Government hope that the changes will encourage more clubs to apply and qualify for CASC status. Depending on the outcome of the consultation, it is possible that some existing CASCs may need to make changes to the way they operate if they wish to continue claiming relief. For example, they may need to make allowances for those on low or modest incomes. However, while the consultation is ongoing, CASCs will not need to make any changes.

While HMRC has been reviewing the CASC regulations, a number of clubs that have applied to HMRC have had their applications put on hold. The Government are sorry for the delays they have experienced.

HMRC is writing today to each of those clubs whose application has been put on hold to draw their attention to this statement. HMRC will write again to each club when the consultation document is published explaining how the proposed new rules are likely to affect the club and its application.

One outcome of HMRC’s review of the current rules that does not require legislative change is that clubs can offer junior memberships without voting rights and still qualify as CASCs. We are pleased to announce that HMRC will be applying this rule with immediate effect.

This Government recognise the importance and value of CASCs, and we hope the sports sector will welcome the measures being announced today.

Double Taxation Agreement (UK and the People's Republic of China)

Monday 4th March 2013 Written Statements

[The Exchequer Secretary to the Treasury (Mr David Gauke)]

A protocol amending the double taxation agreement with the People’s Republic of China was signed on 27 February 2013. The text of the protocol has been deposited in the Libraries of both Houses and is available on HM Revenue and Customs’ website. The text will be scheduled to a draft Order in Council and laid before the House of Commons in due course.

House of Lords Appointments Commission (Triennial Review)

Monday 4th March 2013 Written Statements

[The Minister for the Cabinet Office and Paymaster General (Mr Francis Maude)]

I am today announcing the start of the triennial review of the House of Lords Appointments Commission (HOLAC). Triennial reviews of non-departmental public bodies (NDPBs) are part of the Government’s commitment to ensuring that NDPBs continue to have regular challenge on their remit and governance arrangements.

The review will be undertaken by the Cabinet Office.

In common with all such reviews the following will be undertaken:

to challenge the continuing need for this NDPB—both its functions and form; and

if it is agreed that it should remain as an NDPB, to review its control and governance arrangements to ensure that it is complying with recognised principles of good corporate governance.

The aim will be to complete the review in April.

AHVLA Report

Monday 4th March 2013 Written Statements

[The Minister of State, Department for Environment, Food and Rural Affairs (Mr David Heath)]

Following the events at Ramsgate port on12 September 2012, when a consignment of 540 sheep were unloaded at the port which resulted in three sheep drowning and more than 40 more having to be humanely killed, I asked the Animal Health and Veterinary Laboratories Agency (AHVLA) to review its operational procedures and the application of the EU rules on welfare during transport to livestock exporters to ensure that all was done to prevent such an incident happening again. The terms of reference of this report were to investigate the overall handling of the incident; the AHVLA’s procedures for managing inspections at Ramsgate and how they work alongside other bodies present at the port during inspections; and the contingency arrangements required by the transporter and any needed by AHVLA as the regulator.

As I informed the House on 13 December 2012, Official Report, columns 479-535, this report was withheld from publication at the request of Kent county council trading standards while they completed their investigations and any possible prosecution action to avoid the possibility of prejudicing the outcome of these proceedings.

I am pleased that following the completion of their investigations, KCC trading standards have agreed that publication of the report can now go ahead. I am placing a copy of the report (suitably redacted only to remove information which could be used to identify individuals) in the House of Commons Library. AHVLA identified a number of procedural enhancements to its existing operational practice which it believed will ensure that there is no repeat of the regrettable events that took place at Ramsgate port on 12 September. These procedural changes are:

Inspection of every consignment passing through Ramsgate;

Tougher enforcement of welfare procedures;

AHVLA implementing its own contingency plans in the event of an emergency if the transporter is unwilling or unable to implement their own plans within two hours;

Improved procedures to ensure an AHVLA vet is always within an hour of the port to assist AHVLA inspectors in the event of an emergency or welfare concern;

Working with the operator of the transport vessel to develop new contingency measures in the event of an emergency;

Restricting changes that the transporter can make to the journey log of the delivery prior to the export. This will help maintain clear records of the animals during the journey.

Kent county council have commenced criminal proceedings against a number of defendants; their first court appearance is scheduled for Tuesday 2 April 2013 at 10.30 hrs at Canterbury Magistrates Court. Offences under “The Welfare of Transport (England) Order 2006” of loading sheep which were unfit to travel and of transporting them in an inappropriate vehicle have been alleged contrary to articles 5 and 9 of the order. These offences are summary only and are punishable by six months’ imprisonment and/or a £5,000 fine.

Horsemeat Fraud

Monday 4th March 2013 Written Statements

[The Secretary of State for Environment, Food and Rural Affairs (Mr Owen Paterson)]

I would like to update the House on developments since my written ministerial statement on 25 February, 2013, Official Report, column 5WS, on the latest results from the food industry programme of tests of beef products for the presence of horsemeat.

The vast majority of results from food retailers, wholesalers, and caterers are now in. Including previous weeks’ testing, a total of 5,430 test results of the most vulnerable processed beef products had been reported to the Food Standards Agency by Friday 1 March. They continue to show that over 99% of processed beef products are what they say they are on the label.

Last Friday, 1 March, the Food Standards Agency published a third set of results from the programme of product testing being carried out by food businesses. These are included in the table alongside results reported to the House previously—25 February 2013, Official Report, column 5WS . This included a further 1,797 results since the 22 February report, in which a further four products were confirmed as containing horse DNA. These four products are covered by 10 test results that show horse DNA at or above the 1% threshold. All were named and withdrawn from sale.

Special Mission Immunity

Monday 4th March 2013 Written Statements

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

I wish to inform the House of a new pilot process by which the Government will be informed of inward visits which may qualify for special mission immunity status.

A special mission is a temporary mission, representing a state, which is sent by one state to another with the consent of the latter, in order to carry out official engagements on behalf of the sending state.

In the case of Khurts Bat v. the Federal Court of Germany [2011]EWHC 2029 (Admin) the High Court recognised that, under customary international law, members of a special mission enjoy immunities, including immunity from criminal proceedings and inviolability of the person, and that these immunities have effect in the United Kingdom by virtue of the common law. However, the Court made it clear that not everyone representing a state on a visit of mutual interest is entitled to the immunities afforded to members of a special mission but only where a visit is consented to as a special mission. In the case of inward missions to the United Kingdom, the Court affirmed that it is a matter for Her Majesty’s Government to decide whether to recognise a mission as a special mission.

In order to avoid uncertainty as to the status of particular missions, the Government will put in place a new pilot process so that the Government’s consent to a special mission can be addressed expressly before the mission arrives in the UK. Embassies and High Commissions in London will be invited to inform the FCO of forthcoming visits in cases where they wish to seek the Government’s express consent as a special mission. The FCO will respond with Government’s consent or otherwise to the visit as a special mission. Any legal consequences would ultimately be a matter for the courts.

The Commonwealth Charter

Monday 4th March 2013 Written Statements

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

We strongly welcome the new Commonwealth charter which has been agreed and adopted by all Commonwealth Heads of Government. The Government have today laid a copy of this charter before Parliament in the form of a Command Paper.

A copy of the charter will be presented to Her Majesty the Queen on Commonwealth day on 11 March. Events to launch the charter officially will take place across the Commonwealth during that week.

For the first time in its 64-year history, the Commonwealth has a single document setting out the core values of the organisation and the aspiration of its members. The Government played an important role in its development.

The charter is an overarching summary bringing together Commonwealth values and commitments that are set out in more detail in previous declarations and affirmations.

The Government hope that the charter will become an established, recognisable statement of all that the Commonwealth stands for, accessible to all Commonwealth citizens, and a means to protect and promote the Commonwealth’s core democratic values for years to come. The commitments in the charter should be upheld, adhered to and kept under review by member Governments, Parliaments and civil society organisations.

A strong Commonwealth will help promote democratic values and good governance and, in turn, the future prosperity of all member states. Strong, clear values are crucial to the future credibility and success of the Commonwealth.

Biometrics Commissioner and Protection of Freedoms Act 2012

Monday 4th March 2013 Written Statements

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

I am appointing Mr Alastair MacGregor QC as the new Commissioner for the Retention and Use of Biometric Material (“Biometrics Commissioner”). The Protection of Freedoms Act 2012 (“the Act”) introduces a new, fairer, regime for the destruction, retention and use of biometric material, such as DNA and fingerprints. This important new role is created by the Act to provide independent oversight to the operation of the new regime and is vital to ensure that decisions by the authorities to keep biometric material are made in accordance with the law, and that there is public confidence in the exercise of such powers.

The functions of the Biometrics Commissioner are set out in sections 20 and 21 of the Act. As Commissioner, Mr MacGregor will be the sole decision maker in reviewing decisions to retain material for national security purposes and in determining applications made for the retention of material relating to individuals arrested but not charged. He will make an annual report about the carrying out of all these functions, which will be laid before Parliament.

Mr MacGregor takes up post from today and we look forward to working closely with him.

We are also making significant progress in preparation for the commencement of part 1, chapter 1 of the Act in October 2013. To date 504,000 DNA profiles have been deleted from the national DNA database and 439,000 DNA samples destroyed.

Document Fraud (Specialist Printing Equipment)

Monday 4th March 2013 Written Statements

[The Minister for Immigration (Mr Mark Harper)]

My hon. Friend the Minister for Criminal Information, Lord Taylor of Holbeach, has today made the following written ministerial statement:

I am today launching a four-week public consultation on proposals to prevent the supply of highly specialist printing equipment to fraudsters who then use that equipment to produce false documents.

These proposals have been developed following a rising trend in illegal document factories which buy specialist printing equipment to produce counterfeits of credit cards and Government-issued documents, including passports and driving licences. This trend is contributing to the £2.7 billion cost of identity crime to the United Kingdom each year and helps criminals to enter the country illegally, to commit benefit fraud and to evade criminal records checks.

The proposals would make it a criminal offence to supply highly specialist printing equipment to fraudsters, whether deliberately or without carrying out reasonable checks. The Government have held discussions with the specialist printing industry and the police, both of which originally requested that we address this issue. We are now seeking wider views which will enable us to evaluate the evidence and the impact on the industry to help shape potential proposals for legislation.

The detailed consultation questions can be found on the Home Office website at: www.homeoffice.gov.uk/publications/about-us/consultations/printing-consultation/.

Grand Committee

Monday 4th March 2013 Grand Committee

Monday, 4 March 2013.

15:30

[The Deputy Chairman of Committees (Baroness Andrews)]

My Lords, if there is a Division in the House the Committee will adjourn, as usual, for 10 minutes.

Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2013

Monday 4th March 2013 Grand Committee

Considered in Grand Committee

15:30

Moved by

[Lord Newby]

That the Grand Committee do report to the House that it has considered the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2013

Relevant documents: 19th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee.

[Lord Newby]

My Lords, the Government have been clear that the attempted manipulation of the London interbank offered rate is completely unacceptable and has no place in the UK’s financial services industry. That is why we moved quickly after the initial revelations emerged to ask Martin Wheatley, the chief executive-designate of the new Financial Conduct Authority, to consider what immediate reforms could be made. The Wheatley review, which was published in September, provides a 10-point plan to reform LIBOR, including recommendations to both government and market participants. The Government welcomed and endorsed the Wheatley review’s recommendations, and have asked all institutions to which they are addressed to implement them without delay.

The Government believe that the banks and the British Bankers’ Association have to take responsibility for their failings and act on Mr Wheatley’s recommendations, including the removal and replacement of the BBA as operational LIBOR administrator. HM Treasury and the BBA have been working together and have made significant progress in laying the foundations for this unprecedented process. The noble Baroness, Lady Hogg, is now leading an independent committee that will recommend an appropriate successor. This builds on the legislative changes that we have already made. Following the Wheatley review, we introduced the following amendments to the Financial Services Act, which are relevant to today’s debate, to enable benchmark activities to be brought within the scope of statutory regulation under FiSMA, and to create a new, distinct criminal offence for making false or misleading submissions in connection with the determination of benchmarks.

Following a period of consultation at the end of last year, the two draft orders that underpin these changes, which we are debating today, were laid before Parliament. Last week they were approved by the other place. The Government plan to bring both orders into force at the beginning of April. This will continue the Government’s approach of taking decisive action to reform LIBOR.

The first statutory instrument amends the Financial Services and Markets Act 2000 (Regulated Activities) Order, to denote that submitting to and administering a benchmark are both regulated activities. The draft order specifies LIBOR as the relevant benchmark. The regulation of these activities will enhance and strengthen the FCA’s ability to make rules on benchmark-setting, as well as its ability to supervise directly and take regulatory action against those involved in benchmark-setting processes. It will also implement a key recommendation of the Wheatley review. Under this order, the banks that submit to LIBOR and the successor to the BBA will be regulated by the FCA.

The draft order provides certain exemptions to these activities to cover information that was not created specifically for the benchmark-setting process. Where a person simply supplies publicly available factual data, such as the stock market closing price, to the administrator of a specified benchmark, their activities will not constitute submission to a benchmark. Similarly, if the administrator of the benchmark happens to subscribe to a general information service such as a newspaper, the provider of that service will also not be carrying out the activity of submitting to a specified benchmark. The draft order includes provisions to ensure a smooth transition to the new regulated regime for those currently involved in the setting of LIBOR.

Finally, the order makes two consequential changes to the definition of “consumer” for the purposes of the FCA’s objectives. These changes ensure that individuals whose rights, interests or obligations are affected by the benchmark are classed as consumers by the FCA in meeting its objectives.

The second order under discussion today underpins the new criminal offences created by the Financial Services Act, as recommended by the Wheatley review. The Government have been clear throughout the ongoing enforcement actions that any organisation or individual found guilty of this sort of wrongdoing must take full responsibility and should be punished, if appropriate, by the civil and criminal law. The Serious Fraud Office has launched a criminal investigation into allegations of LIBOR manipulation under the Fraud Act. However, the Government believe that the FCA should also have the powers to investigate and prosecute this type of conduct in relation to benchmarks in the future. Although the FCA will have powers to investigate misconduct in relation to LIBOR and other benchmarks, none of the offences currently provided for in FiSMA apply to misconduct in relation to the kinds of benchmarks revealed by the recent investigations.

To close this gap, the Government created a new criminal offence specifically related to benchmark misconduct in the Financial Services Act. The Government also took the opportunity to review and expand the existing offences which relate to misleading statements made with a view to inducing the recipient to engage in market activity. These offences are backed up by strong and dissuasive criminal penalties of imprisonment for up to seven years and an unlimited fine.

The draft order specifies the activities, investments and benchmarks to which these offences relate and carries forward the existing law which is needed to support the new offences. Article 3 of the new order specifies the benchmarks to which the new offence applies—specifically LIBOR. Rogue individuals may still attempt to manipulate the rate but if they do, the FCA will have the appropriate powers to investigate and prosecute them.

The amendments introduced to the Financial Services Act last year give the Government the power to regulate benchmarks beyond LIBOR through appropriate secondary legislation. While we have taken swift action to deal with LIBOR misconduct, this does not mean that other benchmarks should go unregulated. We have given serious consideration to whether we should extend regulation to other benchmarks where we believe there to be a risk of manipulation.

The Government consulted on the matter at the end of last year. In answer to the Government’s consultation, respondents argued that an international consensus and framework should be developed under the auspices of the International Organisation of Securities and Commissions, the Financial Stability Board and the European Commission before the scope of benchmark regulation is extended beyond LIBOR. Progress is being made on these international initiatives. The Government agree with the consultation respondents and have decided, for now, to apply those new provisions only to LIBOR. We continue actively to engage in and drive forward the international work on this issue. However, as we have done in the case of LIBOR, we stand ready to move ahead of international work streams and table further secondary legislation to extend the scope should we deem it necessary. I commend these orders to the House.

This group also includes the Uncertificated Securities (Amendment) Regulations, which amend the Uncertificated Securities Regulations 2001 to transfer responsibility for the approval and regulation of operators of securities settlement systems from the Treasury—which had delegated the responsibility to the Financial Services Authority—to the Bank of England. The regulatory arrangements for securities settlement systems have always been modelled on those for recognised clearing houses and recognised investment exchanges in Part 18 of FiSMA. The new powers and other changes to these regulations essentially follow the changes that the Financial Services Act 2012 makes to Part 18. Specifically, the regulations provide the Bank of England with new powers to require reports to be produced by skilled persons in respect of operators, to appoint investigators for the purpose of making inquiries about operators and to publicly censure operators in appropriate cases. In addition, the regulations replace the existing provision regarding the prevention of restrictive practices with provision for the purpose of preventing operators adopting excessive regulatory provision.

The final order in this group is the consequential amendments order. A number of changes to other pieces of legislation are required as a consequence of the regulatory reforms introduced by the Financial Services Act. The majority of these were included in Schedule 18 to the Act. However, a small number of amendments have required further consideration during the Act’s passage and are therefore being made through this instrument. Primarily, it amends references to the FSA’s rulebook in primary legislation, taking into account that both the PRA and the FCA will make rules in the new regulatory system. It also amends references to provisions of the Financial Services and Markets Act 2000 which have been amended by the Financial Services Act 2012. These orders are all necessary for the effective implementation of the Financial Services Act and, on this basis, I commend them to the Committee.

[Lord Eatwell]

My Lords, I thank the Minister for introducing these orders. I will take them in reverse order, so to speak, since the major issue of the amendments relating to LIBOR and its subsequent management is the most weighty, and we can take some of the later amendments perhaps more quickly and dispose of them.

First, as the noble Lord says, the consequential amendments refer primarily to the specification of which parts of the FSA rulebook are to be divided between the PRA and the FCA. This seems rather minor but has very significant consequences, because you are taking what was, we hope, an internally consistent document and ripping it apart. The question is therefore whether the consistency that existed in the previous document will be retained in the subsequent two documents. It would be helpful if the noble Lord could elaborate a little on that, particularly in the light of the recent arguments being made by Mr Haldane of the Bank of England, who has argued most strongly that the excessive number of pages of regulation should be significantly reduced in order to reduce complexity. If Mr Haldane’s rule is to be followed, will we end up, when these rulebooks are divided following these measures, with more pages or fewer? A particular element puzzled me in this particular order. In respect of Article 13, which amends the Corporation Tax Act 2009, can the Minister explain how transforming “Insurance Prudential Sourcebook” into “Prudential Sourcebook for Insurers” has any substance whatever?

Uncertificated securities is a very important area and there has been huge growth in electronic exchanges and uncertificated insurances of this type. The order refers at many points to the notion of excessive regulation by the managers or operators of electronic transfer systems. Can the noble Lord elaborate on who is to define “excessive” and, indeed, how it is to be specified? If there is to be some clarity in this law, it would help if the notions of “excessive” and “disproportionate”, which are used at several points throughout the order, were clearly defined. There was one other puzzle, rather like the puzzle I have about the Insurance Prudential Sourcebook, on which the Minister could perhaps help me. In the redefinition of responsibility from the Treasury to the Bank of England, it is clear that “Treasury” is a collective noun while “Bank of England” is singular. Why is that? Is it because the Bank of England is a singular person, namely the governor, whereas the Treasury has responsibility shared out more widely?

I now turn to the meat of the matters before us today, the orders referring to misleading statements and impressions, which essential collect a number of areas which will be responsible if other benchmarks should be developed rather than simply LIBOR, and of course to the major one on regulated activities. First, I was very struck by the list of organisations and responsibilities associated with misleading statements and impressions. In the noble Lord’s description of the creation of those lists, he referred to the possibility of further benchmarks being included within the procedures defined within the Act. He told us that these were now being considered internationally, and that we await international rulings on these matters. It seems that there is a stark contrast between the very prompt action that was taken following the Wheatley report in respect of LIBOR and the effective kicking into touch of all the other areas which are of equivalent importance. Can the Minister assure us that major benchmarks used within the City of London are not today being manipulated? Can he assure us that the delays in international consideration of these matters will not result in some of the same activities as we have seen with respect to LIBOR?

15:44

The order on regulated activities, which is the subject of the key Motion before us, is very clear and I have very little to comment on except the issue of interim permission. Interim permission as it is presented in the order seems somewhat obscure. Is it designed purely to refer to the FCA managing the determination of LIBOR before a particular agent is appointed, or is it to refer to when some form of agent is appointed? I was rather puzzled by this section of the order. The Minister did not refer to it in his introduction and I would be grateful if he could elaborate and explain.

The Minister referred in his introduction to the “attempted” manipulation of LIBOR. His noble friend Lord Deighton has taken this further in the House and referred to the alleged manipulation of LIBOR. Is it the view of the Government that LIBOR was manipulated or is it not? If it was manipulated, and if there was a change in LIBOR, there are consequential impacts on millions of contracts, with a potential impact of losses which, if taken across the variety of contracts, may be substantial. Given that firms have been fined, particularly by the American authorities, is the use of “attempted” appropriate, or is it the view of the Government that LIBOR was manipulated and, if so, was that the rationale for their very prompt action?

The Minister referred to the committee under the noble Baroness, Lady Hogg, which is conducting the process of appointing an administrator—a person to manage the LIBOR process. Could he give us some insight into how this is proceeding? In particular, could he tell us the type of firm—not of course the actual firm; we do not want to know that—that is likely to apply and what criteria are being applied, particularly with respect to conflicts of interest in firms, such as major accounting firms, which might have appropriate skills to manage LIBOR but would have overwhelming conflicts of interest if they were to be appointed? I would be grateful if he could elaborate on that process.

[Baroness Kramer]

My Lords, I shall try to keep my comments brief and, if I may, to follow the order in which the noble Lord, Lord Eatwell, addressed the orders to make life a little easier for the Minister. On those elements of the order that attempt to make sure that the FCA and PRA rulebooks appropriately intermesh, and on the comments of Andy Haldane on the risks that arise when you manage through rules rather than through structure, can the Minister give us some assurance that, behind the clarification of the rules, is the cultural commitment to act together as a coherent unit? The fear that Mr Haldane and others have expressed is that, once the institutions see rules, their first reaction is to attempt to game them. I suspect that it is not the number of rules that is the general concern but the coherence of the regulators in making sure that gaming is not a practice that they will permit.

The heart of today’s discussion is to do with LIBOR. I have a general question on the participation of banks in the LIBOR-setting process. It was the strong wish of many that more banks should participate in the process. At the moment, many seem in effect to get a free ride by allowing others to be the participants in the rate-setting process. They then use the rate across the many instruments and transactions that they sign up to, but because they did not participate themselves, they were in many ways getting a free ride, not exposing their internal positions to public view in the way that the participants were and making it much more difficult for other banks to compete against them when some were being transparent and others were not. I wonder where that process has got to. I understand that it was to be voluntary, and I do not know whether we have had any change in who is involved in rate-setting at this point or are likely to in the near future.

At the heart of my questions for the Minister are the sanctions of themselves. We all strongly support the new offence of making false or misleading statements and false or misleading impressions in the submission of benchmark information in the setting of a rate such as LIBOR. One of the underlying concerns has been the way in which the regulator approaches such violations, which is to come down increasingly hard on the individuals who have been clearly and directly involved in that false submission but not to look upwards to those who create the culture and environment in which that behaviour takes place. Tracey McDermott has said on several occasions that the appropriate way to enforce is to find the problem and then follow the trail and to stop questioning at the point where the trail goes cold. That obviously creates for senior management an advantage in wilful ignorance and makes it beneficial for them not to know in any detail what is happening in their organisation, certainly for there to be no trail that would be easy for a regulator to follow. Many of us have come to the conclusion that the regulator needs to have a way to look through that to make senior members of a company accountable for behaviour that is happening on their watch and which they do not know about through negligence, in a sense, rather than through deliberate deceit on the part of those carrying out the wrongful behaviour. Can the Minister make any comments about that?

The underlying concern is that the regulator has sanctions that are strong enough. Many of us have noticed the distinction between the kind of sanctions that a US regulator can use versus those available in the UK. I know that that is not a direct discussion within the order, but it is so closely tied to it that I wonder whether the Minister would comment.

[Lord Newby]

My Lords, I am extremely grateful to noble Lords who have contributed to the debate and will attempt to answer the questions they have raised. The first questions related to the effect of the tearing up, or bifurcation, of the rulebook and how continuity will be retained. I hope that the cultural commitment which the noble Baroness, Lady Kramer, mentioned, pervades those at the head of the new organisations and that it will be carried forward. In formal terms, consistency will be maintained by the operation of the memorandum of understanding between the two bodies, the PRA and the FCA, which we discussed in relation to other orders last week.

This is of course not the first time that there has been an attempt to reduce the number of pages. The FSA at one point consulted on it, but the answer it got back was, “Actually, we do not want the number of pages reduced significantly, because they tell us what to do, and if you reduce the number of pages, that puts more of a requirement on us to exercise our own judgment”. That is the balance that we are grappling with here. On the one hand, everybody wants less regulation, but when the consequence of less prescriptive regulation is that people have to exercise more of their own judgment, sometimes they become less keen.

[Lord Eatwell]

The noble Lord has put his finger on absolutely the point that Mr Haldane was making, which is that the excessive complexity of regulation these days is actually being trapped in a game between the regulated and the regulators; as the regulated develop yet more complex instruments, the regulator responds with more complex regulation, and then the regulated respond with more complex instruments to evade the regulations that have just been introduced. The whole point of Mr Haldane’s argument was that there should be a much stronger and simpler structure and that chasing complexity was a fundamental mistake. Complexity in regulation just adds complexity in taxation, which is the origin of successful evasion.

[Lord Newby]

My Lords, I have a lot of sympathy with that view. Of course, one of the reasons why, in a slightly different bit of the forest, we are introducing the general anti-abuse rule is to start moving away from a situation in which the regulator is not only almost institutionally behind the game but responds to problems by having to produce vastly long and complicated legislation, which is why the tax code is as long as it is today.

The noble Lord also asked who defines “excessive”. The use of “excessive” is not new and it follows the existing FiSMA provisions. It means not required by UK or EU law; not justified by reasonable regulatory objectives; or disproportionate to any regulatory objectives. So there is a definition and I am glad that I do not have to administer that.

The noble Lord asked why the Treasury is plural and the Bank of England singular. I am sure he will be interested to know that the Treasury is defined in the Interpretation Act 1978 as,

“the Commissioners of Her Majesty’s Treasury”.

This reflects the fact that, for historical reasons, the Treasury has acted through two or more Lords Commissioners rather than a single Minister. I am extremely pleased to know that there is a rationale for that.

The noble Lord asked, in respect of the misleading statements order and the LIBOR orders more generally, about adding further benchmarks, and whether I can be sure that these are not being manipulated now and that delays will not lead to some of the same activities in respect of the other benchmarks. We do not think they are being manipulated now. By definition with these things, one does not always know until long after the event that people are behaving badly, but there is no indication that by sticking to LIBOR at the moment any illicit activities are taking place. We are putting most of our effort into international discussion on these issues at the moment but the legislation is very clear: we can add additional benchmarks unilaterally by secondary legislation if we feel that we need to do so, but at the moment we do not feel that we are in that position.

The noble Lord asked about interim permission. Interim permission is being given to the person who is administering LIBOR on 1 April and to those banks that are submitting to LIBOR. It is being given so that the new regulatory regime can start without any delay and before the longer-term reorganisation of the LIBOR system is in place.

[Lord Eatwell]

I see that, but to whom is interim permission being given—by whom and to whom?

16:00

[Lord Newby]

I believe—and I stand ready to be corrected—that it is being given to the existing LIBOR setting structure until the new one is in place. If I am wrong, I am sure that I will be corrected reasonably quickly. Indeed, it is being given to the BBA by the FCA because they are responsible for the administration of the system.

The noble Lord asked about the manipulation of LIBOR. The FSA investigation uncovered activity causing significant concern and that was the impetus for the process that we have set in place. Criminal proceedings are ongoing and we hope they come to a speedy conclusion. It was because of a view that LIBOR may well have been manipulated that changes in the legislation took place. We will get to the bottom of the past activity via the criminal investigation but the great thing about what we are doing now means that if there are any future suggestions of wrongdoing, we shall be able to deal with them very quickly.

There were a number of questions about the Hogg committee, how that is proceeding, the type of firm likely to apply and conflicts of interest. The committee just launched the tender process last week. We hope that it will be concluded by the summer. It will be considering the question of conflicts of interest and, at this stage, we are not in a position to say who is going to apply. A number of firms and organisations have put their heads above the parapet to say they are interested but because we have only just started the tender process, we cannot be sure whether they will actually come forward.

The noble Baroness, Lady Kramer, asked about the free ride and whether, when the new benchmark is up and running, more banks will be encouraged to participate in it. That is something that the new managers of the benchmark will need to consider and no doubt they will be looking at it in consultation with the FCA. The noble Baroness asked whether the new legislation would enable and encourage the regulator to follow the trail, so that it is not just looking at the individual trader who is misbehaving but goes up the supply chain. The key thing is that, for the first time, the regulator will be able to look at this all in a systematic way. It has now got the powers to do so and I think that because everybody accepts that it was very serious that LIBOR was being—as appears likely—manipulated in the past, the new penalties and regulatory framework will give the FCA plenty of opportunity to do that.

In terms of whether the sanctions are strong enough, there is no problem about the regulations because there can be an unlimited fine. If we in the UK levy a lower fine than in the USA, this has nothing to do with the legal position. If there is a difference, it is because there is a difference in the minds of the regulators.

The only other question from the noble Lord, Lord Eatwell, which I have not answered—although I will look at the record afterwards and write to him if I have missed anything else—was why an amendment to the Corporate Tax Act is required. I am told that an amendment is needed to reflect the terminology that will be used by the PRA. With these answers, I commend the orders to the Committee.

Motion agreed.

Financial Services Act 2012 (Misleading Statements and Impressions) Order 2013

Monday 4th March 2013 Grand Committee

Considered in Grand Committee

Moved by

[Lord Newby]

That the Grand Committee do report to the House that it has considered the Financial Services Act 2012 (Misleading Statements and Impressions) Order 2013

Relevant documents: 18th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee.

Motion agreed.

Financial Services Act 2012 (Consequential Amendments) Order 2013

Monday 4th March 2013 Grand Committee

Considered in Grand Committee

Moved by

[Lord Newby]

That the Grand Committee do report to the House that it has considered the Financial Services Act 2012 (Consequential Amendments) Order 2013

Relevant document: 18th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Uncertificated Securities (Amendment) Regulations 2013

Monday 4th March 2013 Grand Committee

Considered in Grand Committee

Moved by

[Lord Newby]

That the Grand Committee do report to the House that it has considered the Uncertificated Securities (Amendment) Regulations 2013

Relevant document: 18th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Social Security (Contributions) (Re-rating) Order 2013

Monday 4th March 2013 Grand Committee

Considered in Grand Committee

16:06

Moved by

[Lord Newby]

That the Grand Committee do report to the House that it has considered the Social Security (Contributions) (Re-rating) Order 2013

Relevant document: 18th Report from the Joint Committee on Statutory Instruments.

[Lord Newby]

My Lords, I am pleased to introduce the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2013 and the Social Security (Contributions) (Re-rating) Order 2013 to the Committee. As both the regulations and the order deal with national insurance contributions, I hope the Committee will agree that it is sensible that they be debated together. As a matter of course, I confirm that the provisions in the regulations and the order are compatible with the European Convention on Human Rights.

All the changes covered by these two instruments were announced as part of the Chancellor’s Autumn Statement on 5 December last year. I should confirm from the start that the basis of indexation that has been used to calculate the changes covered by these two instruments is the same as that used for the 2012-13 tax year. In the Budget in March 2011, we announced that, from the 2012-13 tax year, the basis for indexation of most NICs rates limits and thresholds would be the consumer prices index instead of the retail prices index rate of inflation. This is because the Government believe that the CPI is the most appropriate measure of the general level of prices.

I will start with the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations. These regulations are necessary in order to set the class 1 national insurance contributions lower earnings limit, the primary and secondary thresholds, and the upper earnings limit for the 2013-14 tax year. The class 1 lower earnings limit will be increased from £107 to £109 per week from 6 April 2013. The lower earnings limit is the level of earnings at which contributory benefit entitlement is secured. However, NICs do not need to be paid by the employee until earnings reach the primary threshold. The class 1 primary threshold will be increased to £149 per week from 6 April 2013. The secondary threshold is the point at which employers start to pay class 1 NICs. In line with the commitment in the Budget in 2011, this is being increased by RPI to £148 per week.

From this April, the personal allowance for people born after 5 April 1948 will be increased above indexation by £1,335, from £8,105 to £9,440—the largest ever cash increase. As part of that increase, the basic rate limit will be reduced by £2,360 to £32,010. This means that the point at which the higher rate tax kicks in will be reduced to £41,450 in 2013-14. As I mentioned, the upper earnings limit is not subject to CPI indexation. In order to maintain the existing alignment of the upper earnings limit with the point at which higher rate tax is paid, the upper earnings limit will be reduced to £797 per week.

The regulations also set the prescribed equivalents of the primary and secondary thresholds for employees paid monthly or annually. There will be no changes to NICs rates in 2013-14. Employees will continue to pay 12% on earnings between the primary threshold and the upper earnings limit, and 2% on earnings above that. Employers will continue to pay contributions at 13.8% on all earnings above the secondary threshold.

The social security regulations set out the NIC rates and thresholds for the self-employed and those paying voluntary contributions. Starting with the self-employed, the order raises the small earnings exemption below which the self-employed may claim exemption from paying class 2 contributions. The exemption will rise in April from £5,595 to £5,725 a year. Many self-employed people choose to pay those contributions to protect their benefit entitlement, even though they may claim exemption from paying class 2 contributions. The rate of voluntary class 3 contributions will also increase, from £13.25 to £13.55 a week.

Today’s measure also sets the profit limits for class 4 contributions. The lower profit limit at which these contributions are due will increase from £7,605 to £7,755 a year, in line with the increase to the class 1 primary threshold. At the other end of the scale, the upper profit limit will be reduced from £42,475 to £41,450 for the 2013-14 tax year. This is to maintain the alignment of the upper profit limit with the upper earnings limit for employees. The changes to the class 4 limits will ensure that the self-employed pay contributions at the main rate of 9% on a similar range of earnings to employees paying class 1 contributions at the main rate of 12%. Profits above the upper limit are subject to the additional rate of 2%, in line with the 2% paid by employees. I commend the order to the Committee.

[Lord Eatwell]

My Lords, these measures are pretty straightforward and I do not have many comments to make, other than that I noticed that in the noble Lord’s introduction, although he made the traditional argument for CPI over RPI, he mentioned particular rates with respect to RPI. Those are clearly elements which are grandfathered within the social security structure. Are those RPI upratings to be maintained over the medium term, or is this a transitional arrangement? I have lost that in the complexity. That is entirely my failing and I should be grateful if the Minister would help me.

Secondly, and more broadly, can the Minister address the issue of entitlements? Both measures refer to securing entitlements, and that is particularly true with respect to the order on contributions. The whole notion of an entitlement is that one has some predictive expectation of returns, but we know today that there is no such predictive entitlement to returns. Governments—I do not say just this Government—change the pension rules upratings with respect to pensions and the pension age. So the entitlement that individuals are acquiring by making those contributions is simply in the hands of this and any future Administration.

Is that an appropriate way of going about that? The whole notion of national insurance was introduced as insurance—as a relationship, therefore, which would be defined between contribution and entitlement. That relationship has now broken down. Should we be rethinking on what basis the relationship between individual contributions and subsequent returns is calculated?

[Lord Newby]

My Lords, I thank the noble Lord for his comments. On the first point, perhaps I should have said that the RPI, as opposed to the CPI, is used in respect of the secondary threshold and the upper earnings and upper profit limits. Do the Government intend to maintain that in the medium term or to phase it out? We have said that the RPI increase will be for this Parliament, so we have no immediate intention to phase it out.

On entitlements under national insurance legislation and the fact that the Government change the rules, the problem here, I suspect, is that, as the noble Lord said, the link between paying into national insurance and what one gets by way of benefits from the system is very weak. We have gone a long way from the Lloyd George principle, when it was all very straightforward. Because the situation is much less clear than it was when the system was established, it will be quite difficult for the Government either to link national insurance payments more closely to entitlements or to merge income tax and national insurance into a single payment, which I know that my party and others and the Government have considered. We have ended up with a complicated system which succeeds in generating, broadly speaking, the amount of money required to fund the welfare state. I cannot see in the near future, and certainly not in this Parliament, a fundamental rethink about how we do that.

Motion agreed.

Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2013

Monday 4th March 2013 Grand Committee

Considered in Grand Committee

16:15

Moved by

[Lord Newby]

That the Grand Committee do report to the House that it has considered the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2013

Relevant document: 18th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Committee adjourned at 4.16 pm.

House of Lords

Monday 4th March 2013 Lords Chamber

Monday, 4 March 2013.

14:30

Prayers—read by the Lord Bishop of Leicester.

Housing Benefit

Monday 4th March 2013 Lords Chamber

Question

14:36

Asked By

[Baroness Turner of Camden]

To ask Her Majesty’s Government what steps they will take to assist families facing homelessness as a result of housing benefit changes due in April this year.

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

My Lords, this Government are committed to tackling homelessness, and we do not accept that our housing benefit reforms will increase the level of homelessness. The changes do not necessarily mean that people will have to move, but claimants will have to make the same choices about affordability as those not on benefits. Reforming the welfare system in an effective manner is necessary not only to improve the wider fiscal position but to help to get people off benefits and into work.

[Baroness Turner of Camden]

My Lords, I thank the Minister for that response. However, is he aware that more than 600,000 households could be affected by this change in benefits, that many people who are unable to meet the requirements under the new benefit arrangements will have no alternative but to get into arrears, and that, if they get into arrears, they will face eviction, which will result in homelessness, despite what the noble Minister has said?

[Lord Geddes]

The noble Lord.

[Baroness Turner of Camden]

What steps are the Government taking to try to deal with the consequences arising from these new arrangements in regard to housing benefit cuts?

[Lord Freud]

My Lords, we are expecting a number of responses by people affected by what is effectively the removal of a spare-room subsidy. Clearly some will find that they are capable of paying to retain that extra room, some will look to work, some will look for lodgers and some will look for shared tenancies. Where the options are more limited than that, apart from downsizing, we have had substantial discretionary housing payments transferred to local authorities in order to ameliorate those situations.

[Lord Palmer of Childs Hill]

My Lords, has the Minister considered the effect that these cuts are having on people? For instance, within the ward that I represent on Barnet council, one person in a two-bedroomed flat in a high-rise block will, because of the changes, have to pay an extra £14.50 per week from the beginning of April out of the very small amount of benefits they receive. This also applies to people on low working wages. This may be all right in principle and on paper but does my noble friend believe that it is possible where there are no one-bedroomed flats for those people to move into?

[Lord Freud]

My Lords, I said that people will make a range of responses. Some will decide that the best thing they can do is to downsize and they will be supported in that. Clearly, in areas where there is no appropriate social housing, there is the option of moving into private rented housing. However, the essential point is that there is a limit to what the state can afford. We have had quite a lot of changes in the private rented sector, and this brings the social rented sector into line.

[Baroness Pitkeathley]

The Minister is concerned about the problems of caring families. Has he considered the issue of a carer who looks, say, after her severely disabled husband? The spare bedroom—the surplus bedroom as he puts it—is necessary to keep all the equipment, such as hoists and so on; and sometimes the carer needs to sleep there to have an adequate night’s sleep. What arrangements can be made in that situation?

[Lord Freud]

My Lords, that is exactly the kind of case that the discretionary housing payments are intended for. Where there are genuine problems of that nature, we would expect those payments to be made to support that particular family in its accommodation.

[The Lord Bishop of Leicester]

My Lords, is the Minister aware of the pressure on the private rented sector? Many landlords operate a “no benefit claimants” policy, which causes significant problems in night shelters. Is the Minister aware of these problems caused by the shared accommodation rate and what are the Government doing to ensure that people moving on from a night shelter have somewhere to go?

[Lord Freud]

My Lords, there were concerns ahead of our changes to the local housing allowance that private rented accommodation would not be available. I was pleased to learn that that in contradiction to this, in the key London area, where some of the pressures have been greatest, availability in the private rental sector for benefit recipients has actually gone up 5% since we introduced the LHA changes.

[Lord Campbell of Alloway]

My Lords, this is a sad affair. Would the Government possibly have another look at it?

[Lord Freud]

My Lords, when we introduced the local housing allowance changes in the private rented sector a year and a half ago, there were real concerns about homelessness, just as there are now. I stated to the Select Committee that we did not expect any significant increase in homelessness as a result of these changes. We have now run through the LHA changes—they were completed last December—and I am pleased to say that while there have been some modest increases in homelessness in London—it is up 600-odd households—that compares with predictions put out by Shelter and the Cambridge group that up to 134,000 people could move or be made homeless as a result. Your Lordships will understand that it is important to see what the results of some of these changes are, just as much in the social rented sector as we have seen in the private rented sector.

[Baroness Uddin]

My Lords, is the Minister aware of the deepest concern expressed by a number of women’s organisations, particularly those who work with women with young children fleeing violence? What assessment has he made of the impact of the benefit changes on those women fleeing violence with young children?

[Lord Freud]

My Lords, we have taken steps to make sure that refuges and other supported exempt accommodation are protected. I am investigating how to do that on a strategic basis in the medium and longer term.

Schools: Careers Guidance

Monday 4th March 2013 Lords Chamber

Question

14:44

Asked By

[Baroness Jones of Whitchurch]

To ask Her Majesty’s Government whether they will provide face-to-face careers guidance for all young people in schools.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash)]

My Lords, statutory guidance has been published to underpin the duty on schools to secure independent and impartial careers guidance introduced in September 2012. The statutory guidance places a clear expectation on schools to secure access to independent face-to-face careers guidance where it is the most suitable support for young people to make successful transitions, particularly those from disadvantaged backgrounds, or those who have special educational needs, learning difficulties or disabilities.

[Baroness Jones of Whitchurch]

I thank the Minister for that reply. Has he been made aware of the serious concerns that we raised during the passage of the Education Act 2011 that the changes to careers provision would lead to a worse service for young people? Is he now aware of the growing evidence that our concerns unfortunately have proved to be justified? That view is echoed by the Commons Education Committee, which reported in January. It said:

“The Government’s decision to transfer responsibility for careers guidance to schools is regrettable. International evidence suggests such a model does not deliver the best provision for young people. The weaknesses of the school-based model have been compounded by the failure to transfer to schools any budget with which to provide the service”.

What do the Government intend to do to address these failings, in particular the overreliance on referring pupils to careers websites, when it has never been more important for children to have guaranteed, personalised, face-to-face careers advice?

[Lord Nash]

I am aware of the concerns to which the noble Baroness refers. However, hardly anyone—from Alan Milburn to Ofsted—had a good word to say about the quality or effectiveness of the careers guidance provided by Connexions. That is why we gave responsibility for securing careers guidance to schools. They know their pupils best and can tailor provision to their individual needs. The £200 million we have saved on Connexions careers guidance has gone to help protect the schools budget, which itself is a pretty remarkable performance bearing in mind the state of the public finances we inherited. We know of schools which have seized the opportunity.

There is no gold standard for careers advice. It is a difficult area. The duty has been in place for less than two terms. To check on progress, we have asked Ofsted to undertake a thematic review, which will be published in the summer. Information on websites can be very helpful, and the Government are considering the Select Committee’s recommendation and will respond shortly.

[Baroness Brinton]

My Lords, I thank the Government for extending the duty for careers advice from years 8 to 13 from September of this year. However, in response to a Written Question on 27 February in which I asked about the status of independent careers advice in academies, the Minister reassured me that academies opened after September 2012 would be covered by the guidance, but those which opened prior to that are not. Does the Minister agree that it cannot be right that some pupils in schools have access to that advice and others do not?

[Lord Nash]

It is true that academies opened since September of last year will have an obligation in the same terms but academies opened prior to that do not. We have written to all those academies making them aware of this advice and asking them to change their funding agreements accordingly. Good schools seek to identify their students’ aptitudes at an early age and to give them guidance throughout their school career. We take the view that one minimum face-to-face interview at the end of one’s school career is a poor substitute for a broad education.

[Lord Peston]

My Lords, bearing in mind the enormous scale of youth unemployment and the fact that a large number of young people who happen to be in jobs are in jobs well below their qualification and skill levels, can the noble Lord imagine himself being transformed from the government Front Bench to being a schools career adviser? What advice would he give to the young people leaving school later this year?

[Lord Nash]

It will take me a second just to make that transition. We are focused on making sure that more of our pupils leave school with a good education. It is fair to say that the figures on NEETs have gone down in the past quarter for the first time in 10 years. But the advice I would give such a person is to seek some good careers advice from a qualified person.

[Baroness Sharp of Guildford]

Is the Minister aware that in a survey conducted by Edge a year or so ago, it was revealed that teachers knew less about apprenticeships than either parents or pupils? Many schools are not providing decent advice about the range of options open to young people. How can careers advice, which is supposed to be independent, be given by schools when the teachers know nothing at all about these options?

[Lord Nash]

We do not expect teachers to be widely experienced on individual careers. That is why the duty is for them to seek independent advice. All good schools should involve their local business and professional communities from an early stage in their children’s education to give them the broad experience of the careers options open to them.

[Baroness Scotland of Asthal]

My Lords, how will this be assessed? I speak only from my own experience, when my careers adviser told me that if I tried very hard I might aspire to become a supervisor in Sainsbury’s. Is similar advice still being given to aspiring young black girls in Walthamstow?

[Lord Nash]

Schools are held to account through Ofsted on how well students are prepared to progress to the next stage of education and employment. Linked to that, part of the leadership and management assessment would include the extent to which the school is offering a broad and balanced curriculum. Schools are also held to account by the destinations measured, but I think the noble and learned Baroness rather makes my point for me: it is not just about one interview with a careers adviser.

Council Tax: Support Schemes

Monday 4th March 2013 Lords Chamber

Question

14:51

Asked By

[Lord McKenzie of Luton]

To ask Her Majesty’s Government what assessment they have made of the effects of local council tax support schemes on poverty.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, localising council tax support reduces the cost of council tax benefit by 10%. That contributes to our deficit reduction programme, makes councils responsible for support and creates incentives to get people into work. In designing schemes, local authorities should take into account the impact on low-income families. On 16 October, the Government announced a £100 million transitional grant to assist development of local schemes. Some 195 billing authorities have adopted schemes that are compliant with the criteria for the grant.

[Lord McKenzie of Luton]

In thanking the noble Baroness for that reply, I must say that it is somewhat complacent and out of touch. The Resolution Foundation estimates that three-quarters of the 326 local authorities responsible for council tax support schemes will be forced by government cuts to adopt schemes giving less support than the current national scheme. That will see working families losing £165 a year on average and non-working families even more. Taken together with all the other cuts about to hit low-income families, including the bedroom tax that we have just discussed, the 1% capping of benefits and other tax credits, is this not going to lead to increased personal debt, more food banks, lower collection rates for local authorities, more bailiffs knocking on the door and all the misery that that entails? Why do the Government find this acceptable?

[Baroness Hanham]

Well my Lords, a little of what the noble Lord has said is probably overblown. We are well aware that local councils are creating their council tax support schemes. In particular, at the moment, they have been offered transitional relief, as I have already said, to help them with that. Local authorities and the Department for Work and Pensions will be working together to ensure that the worst examples of what the noble Lord has put forward do not occur.

[Lord Jenkin of Roding]

My noble friend may remember that during the passage of the Local Government Finance Act 2012 I expressed some anxiety about the effect of the localisation of council tax benefits. But does she accept that, having kept closely in touch with the Local Government Association since then—I declare my interest as a vice-president of the association—I have been considerably reassured by the efforts that most councils are now making in order to protect the most vulnerable of their council tax payers? Will she also accept that the transitional grant to which she referred has been a considerable help to them?

[Baroness Hanham]

My Lords, I thank my noble friend Lord Jenkin for that and I agree that the transitional grant is a great help. It enables local authorities to have extra resources this year to support what they are doing as they develop their own council tax support schemes. It is slightly disappointing that only half the local authorities in the country have felt able to take up this transitional grant because they have not been able and will not be able to bring down their increase for individuals to below 8.5%.

[The Lord Bishop of Hereford]

My Lords, with changes to council tax benefit coming on top of the changes to housing benefit, working tax credits, benefit up-rating and other changes, will the Minister tell us what the Government are planning to do to monitor and report back to this House the cumulative effect of these cuts on low-income families?

[Noble Lords]

Hear, hear!

[Baroness Hanham]

My Lords, each of the departments involved will, of course, be receiving information about anything to do with benefits. Particularly in respect of the council tax support scheme, we hope and expect that local authorities will be able to make the necessary reductions in their own budgets to make up the 10%. After all, everybody in this country is having to make some contribution towards reducing the deficit so kindly left to us by the previous Government.

[Baroness Hollis of Heigham]

My Lords, do the Government really understand the implications of asking people who have been on benefit and who have never so far paid council tax having to find between 20% and 30% of their council tax bill for the first time? Is the Minister also aware that, as a result, many local authorities are expecting that they will not be able to collect 70% of the monies outstanding from people who have hitherto paid nothing at all? Does she not agree that this is “poll tax mark two”?

[Baroness Hanham]

My Lords, I do not agree with the noble Baroness, Lady Hollis, that this is poll tax mark anything. This is a change to the council tax benefit scheme for individuals based on their individual requirements. Local authorities have plenty of support in what they are doing. They are perfectly able to make their own budgets fit to help with the 10% reduction and, as I have already said, if they have brought their council tax scheme within the transitional relief scheme, they also have transitional relief to help with that.

[Lord Naseby]

My Lords—

[Lord Palmer of Childs Hill]

My Lords—

[Lord Naseby]

My Lords, is it not the flexibility that is being offered to local authorities which is most encouraging? When I was leader of the London Borough of Islington, under the guidance of Harold Wilson, there was nil flexibility to local authorities. We had a diktat from the centre and we had to follow it. At least this coalition Government, recognising that change had to come, have given flexibility for local authorities to decide exactly how they should use the amount of help that is available.

[Baroness Hanham]

My Lords, I thank my noble friend Lord Naseby for bringing reality into this situation. It is correct that the Government have given not only flexibility but also responsibility to local government for making its own decisions, particularly on council tax and the support that comes with that. Local authorities should be—and are—in a good position to make their own schemes and to deal with their own council tax.

[Baroness Farrington of Ribbleton]

My Lords, I congratulate the Minister on managing to shift all the responsibility for increasing poverty and problems with having to pay bills to the poorest. I recognise that the noble Baroness referred to the fact that we are all having to make very big sacrifices, but from where I sit in the north of England, the sacrifices are not being made by the better off in the south but by the very poor in the English regions. In the name of flexibility the Government have passed the responsibility to local authorities in a way that is at best dishonest and at worst sheer lying about the opportunities available to local government. They can keep their libraries and everything else provided that they take responsibility.

[Baroness Hanham]

My Lords, I would draw the attention of the noble Baroness to the fact that local government is being given responsibilities in many areas, many of which have been devolved from central government, something that I think she would have welcomed during her distinguished years in local government. One of the things that local government wanted was access to the council tax support scheme, which it now has. It is now up to local government to provide schemes in individual local boroughs that are satisfactory at all stages. The money from council tax benefits comes into councils’ main budgets and they can use it to make changes and reductions which absorb that 10%. I encourage them to do that.

EU: Budget

Monday 4th March 2013 Lords Chamber

Question

15:01

Asked By

[Lord Dykes]

To ask Her Majesty’s Government what representations they have received from the public on the negotiations for the new European Union budget perspective period to 2020.

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

My Lords, the Government have received a number of representations from the public on the negotiations for the multiannual financial framework 2014-20. These include letters and e-mails from individual members of the public and their Members of Parliament, charities and other non-governmental organisations and universities and research bodies.

[Lord Dykes]

Does my noble friend agree that it was a very good deal for the Union and for this country, bearing in mind the balance of severe spending restraints at one end but long-term real infrastructure investment at the other? Is it not now the job of Conservative Ministers in the coalition to explain properly how the EU budget system works: a modest budget in comparison with other member states, no debts or deficit, no borrowing, payments that are always less than commitments, and a budget that does more and more good with less and less spent on farming?

[Lord Deighton]

I thank my noble friend for congratulating the Prime Minister on the excellent deal he brought back. We accomplished our three main objectives, which were to restrain the size of the budget, to make sure that we kept hold of our abatement and to resist any new EU-wide taxes. We shrank the budget and shifted it away from the more traditional areas, such as the common agricultural policy, into growth-oriented funds. I agree with my noble friend that we are shifting towards a pattern of expenditure that is more consistent with the reformers among us.

[Lord Tomlinson]

My Lords, will the noble Lord accept that what we have here is a seven-year financial framework, but what really matters now is the annual budget year by year over the next seven years? Can he give an undertaking that this Government will pursue a system of zero-based budgeting in each of those seven years so that we can cut out budget lines that are wasteful and increase those budget lines which need to be increased rather than take this rather conservative approach of across-the-board cuts which cut the good as well as the bad?

[Lord Deighton]

The noble Lord is correct that the devil is always in the detail and that it is our traditional practice year by year to negotiate very effectively on behalf of this country to bring about a better outcome in the annual budgets. However, it was extremely important to cap the overall size of the budget as a first step in the necessary reforms that we are all in favour of.

[Lord Pearson of Rannoch]

My Lords, do the Government yet know and have the public been told whether the EU’s so-called Parliament is going to vote in secret on this budget? Is not even the suggestion that it might do so yet further proof of the EU’s innately undemocratic and profligate nature? Is it not time that we closed the whole mistake down? What useful purpose does the EU now serve at such vast expense to all of us?

[Lord Deighton]

I will address the narrower question; so many noble Lords have much more experience on the broader question. I do not know whether the European Parliament intends to vote in secret. If it does, that is completely wrong.

[Lord Hamilton of Epsom]

My Lords, will my noble friend comment on the reports in the papers yesterday that this budget agreement has been reached for certain sweeteners, amounting to billions of euros, being paid to practically every nation in Europe other than the United Kingdom?

[Lord Deighton]

In this budget we are talking about over €900 billion, six separate headings of component parts, and an ‘other items’ budget which includes a range of other things. It is a big and complex budget with many different components. There were lots of parts to the negotiation, and these particular transactions are indeed part of it.

[Lord Eatwell]

My Lords, given that the EU budget is being reduced in real terms, can the noble Lord tell us what the consequential reductions are in expenditure in the UK?

[Lord Deighton]

There were three key things that the Prime Minister wanted to protect in terms of the expenditure coming into the UK. The first was to make sure that our universities were very well positioned to bid for the grants available. That part of the budget has gone up and the rewards are based on excellence, so they should do well there. Secondly, he wished to make sure that our farmers are protected in terms of the environmental programmes that they support, which he did. Thirdly and finally, the structural aid that goes to our less well-off regions has been protected at the existing base level of €11 billion.

[Lord Stoddart of Swindon]

My Lords—

[Lord Campbell of Alloway]

My Lords—

[Lord Stoddart of Swindon]

My Lords, none the less, is it not true that the final outcome of the arrangement for the next seven years will in fact mean that the United Kingdom will be paying £500 million extra per year? Is that really acceptable under the present circumstances with cuts to our own social services?

[Lord Deighton]

The final outcome will be determined on a year-by-year basis depending on exchange rates, the growth of our national income and other such factors. The spirit of the question is indeed correct: our net contribution is likely to go up. That is simply because of the concessions made in the 2005 negotiation, when we surrendered some of the abatement advantages.

Bank of England Act 1998 (Macro-prudential Measures) Order 2013

Monday 4th March 2013 Lords Chamber

Financial Services and Markets Act 2000 (PRA-regulated Activities) Order 2013

Financial Services and Markets Act 2000 (Threshold Conditions) Order 2013

Financial Services and Markets Act 2000 (Financial Services Compensation Scheme) Order 2013

Financial Services Act 2012 (Mutual Societies) Order 2013

Motion to Approve

15:07

Moved By

[Lord Newby]

That the draft orders laid before the House on 24 and 28 January be approved.

Relevant documents: 18th and 19th Report from the Joint Committee on Statutory Instruments, 26th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 26 February

Motion agreed.

Charities (Incorporated Church Building Society) (England and Wales) Order 2013

Monday 4th March 2013 Lords Chamber

Motion to Approve

15:08

Moved By

[Lord Wallace of Saltaire]

That the draft order laid before the House on 22 January be approved.

Relevant document: 18th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 February

Motion agreed.

Enterprise and Regulatory Reform Bill

Monday 4th March 2013 Lords Chamber

Report (2nd Day)

15:08

Relevant documents: 9th, 10th, 11th, 12th and 14th Reports from the Delegated Powers Committee.

Moved By Viscount Younger of Leckie

That the report be now received.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)]

My Lords, I beg to move that this Bill now be further considered on Report.

[Lord Foulkes of Cumnock]

My Lords, before we move to consideration of the matters before us today, I wonder whether I have missed something. Has this House appointed the noble Lord, Lord Geddes, to adjudicate on matters of order? I ask because my noble friend Lady Turner was interrupted disgracefully by a loud heckling by the noble Lord, Lord Geddes, from a sedentary position, because of his interpretation of what is right and wrong in this Chamber. It is disgraceful that she was treated in such a manner.

[Lord Geddes]

Perhaps I may respond to that. I was merely reiterating what is in the Companion; to the best of my knowledge, those are the rules by which we govern ourselves.

[Lord Foulkes of Cumnock]

My Lords, who gave the noble Lord, Lord Geddes, the individual right to shout from a sedentary position about whether or not one small matter in relation to the Companion has been dealt with? Surely, shouting from a sedentary position is not allowed?

[Baroness Anelay of St Johns]

My Lords, this House is self-regulating, which also means that it conducts itself with self-restraint and follows the guidance in the Companion. I am sure that all noble Lords around the House are keen to do that. It is a good idea to discuss with our Chief Whips how that is best achieved. I know that the Opposition Chief Whip has recently sent to his own Back-Benchers what I consider to be a very helpful guide about what constitutes good behaviour. We should reflect on that. Without pointing fingers, we all should behave in ways that we feel are not becoming of this place. We all want to ensure that we do our job. After all, most people here say that for most of the time we try to do it well.

Report received.

Schedule 17 : Heritage planning regulation

Amendment 70A

Moved by

[Viscount Younger of Leckie]

70A: Schedule 17, page 248, line 6, leave out paragraph 18 and insert—
“18 (1) Section 93 (regulations and orders) is amended as follows.
(2) In subsection (4) after “8(5),” insert “26C,”.
(3) In subsection (5A) after “section” insert “26C or”.”

[Viscount Younger of Leckie]

My Lords, government Amendment 70A corrects an error made in government Amendment 26P, tabled in Committee. The purpose of Amendment 26P was to change the procedure for making a national class consent order, to ensure that it is subject to affirmative resolution. This responded to a recommendation made by the Delegated Powers and Regulatory Reform Committee. Unfortunately, Amendment 26P replaced the wrong paragraph of Schedule 17 and therefore did not achieve the intended result. Amendment 70A is a minor and technical amendment to put this right. I beg to move Amendment 70A.

Amendment 70A agreed.

Clause 57 : Commission for Equality and Human Rights

Amendment 71

Moved by

[Baroness Campbell of Surbiton]

71: Clause 57, page 57, line 9, leave out paragraph (a)

[Baroness Campbell of Surbiton]

My Lords, the purpose of my amendment is to retain Section 3 of the Equality Act. It is of critical importance. It articulates the fundamental principles that we as a society should be aiming for and clarifies the nature of the contribution that the Equality and Human Rights Commission should make towards those aims.

From the banking crisis to phone hacking, to the horrific abuse of people with learning disabilities, recent times have reminded us that culture, ethics and principles are at least as important as the law in securing a prosperous, safe, cohesive and healthy society. As Hector Sants, former chief executive of the Financial Services Authority, succinctly put it in 2010, until the issue of culture and ethics,

“is addressed we will not be able to prevent another crisis of this magnitude from occurring again”.

Section 3 explicitly imports the cultural and ethical principles of equality and human rights into the remit of the commission. It reinforces the notion that its role is more than promoting and enforcing the law. That is essential if it is to help bring about a society in which prejudice and discrimination are eliminated, human rights routinely respected and everyone can achieve their full potential.

Section 3 requires the commission to discharge its functions,

“with a view to encouraging and supporting the development of a society”,

in which specific aims are realised. This is what distinguishes it from other bodies. As Age UK notes in its briefing, it,

“makes clear that the job of the EHRC is to change culture, not just to enforce rules”.

The commission did exactly that in its widely praised inquiry into the human rights of older people receiving care at home. It identified an emerging problem and brought it to the attention of wider society with extensive media coverage. It looked beyond strict legal compliance to whether the principles of dignity, respect and autonomy were being upheld and made proposals including legislative reform. Is that the type of activity that the Minister associated with Section 3 when she said in Committee that the commission,

“should not be an impassioned lobbyist leading emotive campaigns”.—[Official Report, 9/1/13; col. GC60.]

or is it the role we want it to play—not simply a law enforcer but a body that uncovers scandals and working with others points the way forward?

15:15

The Minister has said that Section 3 wrongly implies that it is for the commission alone to bring about these changes in our society. However, Section 3 was amended in this House to make clear that this was not the intention. The commission’s duty is to encourage and support others to realise their aims in Section 3 whether Government, Parliament, the courts, public bodies, business, the media or civil society. It is ironic that many of the reforms proposed or under way will hamper the commission’s ability to work with others. For example, it has lost its helpline, its capacity to make grants and its authority as a source of advice to business.

The Minister has also argued that Section 3 is too broad. This suggests that she considers the duties in Sections 8 and 9 to be more restricted. Repealing Section 3 will do nothing to reduce the scope of issues with which the commission might engage. Therefore, we must assume that the repeal is to limit what the commission can do about those issues, otherwise it is unclear what will be achieved. Ultimately these reforms, including the repeal of Section 3, will focus the commission on law enforcement, especially in the field of discrimination. Bizarrely, this will stem from a Bill to promote enterprise and growth by reducing regulatory burdens. We risk creating a body increasingly reliant on costly and intrusive legal action to have any meaningful impact.

With fewer resources, the commission will have to be more judicious in the issues on which it focuses. We will do it no favours by leaving it simultaneously less clear about its aims and more dependent on legal enforcement to achieve them. I do not believe that the Government want this either, which is why I ask them to think again about the unintended impact of this repeal.

Yesterday’s headlines remind us that our human rights protections cannot be taken for granted. It is more important than ever that we retain the principles enshrined in Section 3. Section 3 is a declaration of our commitment to those principles. It requires us to be vigilant in their protection and restless in their promotion. It provides a direction of travel for the commission and others involved in the work. It makes clear that pursuing those aims requires both enforcement of the law and the development of a deeper cultural respect for equality and human rights, and it requires the commission to provide the leadership that Britain needs to make that commitment a reality.

The case for the repeal of Section 3 has not been made. The Government’s assurances that it will have minimal impact on the commission are unconvincing. If that is the case, what will it achieve? These assurances are also contingent on there being no further reforms of the commission’s role, yet the Government have established a review of the public sector equality duty, including some of the commission’s most significant functions.

We would not wish to risk slipping back to the time before the Stephen Lawrence inquiry, but if Section 3 goes and the equality duty is weakened or lost shortly after, I feel that is precisely where we will be heading. This is why I propose that the Government take the opportunity to reflect on the recommendations of the equality duty review and wait until other reforms have bedded in, giving the new commission some time to get to know each other and to really understand what their task ahead is, before deciding whether the repeal of Section 3 is sensible or justified.

Your Lordships may have seen a briefing from the Equality and Human Rights Commission suggesting a simpler purpose clause, but I fear that it is merely a description. There are no aims. It separates equality from human rights, rather than uniting them. It gives little or no direction and does not reflect what the Government have said about the commission’s future role. I am sure that your Lordships will agree that this late stage of the Bill is not the time to be suggesting such a proposal, with no opportunity for true debate. To debate it as good scrutineers is our job, after all. It is vital to keep Section 3 and I hope that your Lordships will support me in this endeavour. I beg to move.

[Baroness Lister of Burtersett]

My Lords, I apologise for not being able to be present when this amendment was debated in Committee. However, I have read the debate and the balance of opinion clearly lay with the noble Baroness, Lady Campbell of Surbiton—not surprisingly, given the powerful speech she made and the one which she has also made today. It is a privilege to support an amendment moved by such a respected champion of equality and human rights, who I would like to call my noble friend. In doing so, I wish to address just two points that emerged during the debate in Committee.

First, the Minister argued that the general duty contained in Section 3 “creates unrealistic expectations”. She went on to acknowledge the importance of the statement contained in the general duty and suggested that it could,

“be replicated in the commission’s own strategic plan”—[Official Report, 9/1/13; col. GC 61.]

or mission statement. Surely, however, that is to undermine her own argument because if the problem is one of unrealistic expectations, they would still be created if replicated in a strategic plan or mission statement.

The other main argument put forward in the debate was that repeal of the general duty would not make any difference anyway, as it is of symbolic rather than practical importance. This is the official stance taken by the commission itself. I have two responses to that: first, as a number of noble Lords noted in Committee, this justification was challenged by Professor Sir Bob Hepple of Cambridge University. He argued that Section 3 has an important legal function and that without it equality law would be “rudderless” and would lack the “important unifying principle” that Section 3 provides, and which the Joint Committee on Human Rights welcomed in its report on the Equality Bill. However, even if the significance of the general duty were more symbolic than practical, symbols matter in politics and we should not underestimate the symbolism of removing the section. The deluge of e-mails that I have received in recent days defending Section 3 is a testament to the power of that symbolism.

At a time when politics has become increasingly managerial and uninspiring, I find it rather wonderful that the Equality Act contains an aspirational, visionary statement of intent. Moreover, the European Commission study on national equality bodies advised:

“In order to fully realise their potential in promoting equal treatment for all, equality bodies should develop a vision of their role within the administrative culture and society”.

It is a sad day if the vision enshrined in the legislation is now struck out. As the British Institute for Human Rights argues, it sends a worrying message that the Equality and Human Rights Commission,

“is to be a compliance factory with no real ambition or purpose”.

I fear that the suggested alternative put forward by the commission in its briefing, namely that it should be,

“a national expert on equality and human rights”,

and the strategic regulator for equality offers neither ambition nor visionary purpose but is, as the British Institute argues, purely descriptive, as the noble Baroness has already said. It offers mundane prose where Section 3 offered the poetry of high ideals.

I hope that the Minister will have thought again in the light of the support for this amendment in Committee and the public concern now being expressed. If not, should the noble Baroness, Lady Campbell, decide to test the opinion of the House, I hope that noble Lords will support her. The amendment will cost nothing, but it will provide reassurance that the work of the Equality and Human Rights Commission will continue to be framed by a vision of society in which each of us without exception is treated equally and with dignity and respect—the core principles of human rights.

[Baroness Hussein-Ece]

My Lords, I associate myself with what has been said by the noble Baronesses, Lady Campbell and Lady Lister. I do not want to repeat what I said at Second Reading—we had a very full debate then—but I was disappointed that we continue to hear that removing the general duty was a bit of tidying up and that it would have no effect whatever on the work or legal responsibilities of the commission. The question that has been put a number of times, including by myself, was then why do it? Why do something if it will have no impact at all? I am afraid that the reply has not given me much confidence.

I strongly believe that the Government have a choice between a strong independent body that is committed to promoting and safeguarding our values, which I believe are British values, independent of the Government of the day—whichever colour—or we go for the option of a watered-down, less independent, weaker institution, which in time would be rendered merely an enforcement agency or regulator without the vision and underpinning that is so important. I cannot think of another organisation, independent or statutory, that does not have some sort of mission statement or a duty to promote or do something. This is the only organisation of its kind in this country. Are we suggesting that the Equality and Human Rights Commission does not need such a mission or values, which were very much fought over and arose as a result of cross-party agreement when the Equality Act 2006 was debated and enshrined?

I said at Second Reading, and it is worth saying again, that the then Opposition gender and equality spokesperson Eleanor Laing, MP, spoke of how important it is that the general duty is ambitious and wide ranging. With the change of government and apparently as part of an unwritten agreement, this seems to have changed for whatever reason, and I am disappointed.

There is an opportunity here for the Government to say what sort of organisation we want. We have a choice, but I also think that maybe we need to take a step back. Perhaps this is not the right place to debate what sort of mission statement or general duty an organisation as important as this, with such a multifaceted function, should have at this stage. We evidently need more time to consider this. It cannot be resolved via this Bill on the Floor of the House.

Will the Government take this away and consider the type of organisation they want and what they want it to do? As I said, in line with other organisations, if not in this country then in the world, it should have some form of agreed mission statement incorporating its aims, responsibilities and duties to the taxpayers and citizens of this country. The Government should do this in consultation with the Equality and Human Rights Commission, and bring it back to the House. Will the Minister respond to that?

15:30

[Baroness Turner of Camden]

My Lords, in Committee I put down an amendment to this part of the Bill. I was overwhelmed by and supportive of the noble Baroness, Lady Campbell, who made a most eloquent plea in support of the case then. I hoped that because of the support that she had, the Government would have reconsidered their position and accepted what everybody was pressing for, and what a number of us will, I am sure, press for this afternoon.

The Bill seeks to do away with Section 3 of the Equality Act, which sets out the guidance, principles and values that define the commission. It attracted all-party support in Parliament when the legislation was first debated. They are very important in terms of both perception and symbolism, as a number of speakers have already pointed out. With such pressure on the Government to change their position on this Bill, I hope that they will tell us this afternoon that they have decided to do so. It is not only the law that is important but the culture in which we all operate, and the commission plays a very large role in changing that culture.

We all want to live in an equal and dignified society, which is what Section 3 envisages. I hope that the Government have changed their mind since Committee and will now agree to support what the noble Baroness and her supporters so eloquently expressed this afternoon.

[Baroness Brinton]

My Lords, I, too, support the sentiments and comments made by all noble Lords who have spoken. I will add one further point. The distinction between compliance and a general duty implies that there is no need for anything until the point of compliance. However, many issues that relate to people with protected characteristics are often cultural, and may not get to a point where compliance is necessary straightaway. It would be much better for that culture—for example, the treatment of adults with learning disabilities, perhaps in one or two homes before it starts to gather momentum—if there were a general duty on the sector, and if the commission could go in, offer support and start to change the culture before a crisis develops that requires compliance. I echo the sentiments of others who have spoken before, and very much hope that the Government will reconsider the deletion of Section 3.

[Lord Morris of Handsworth]

My Lords, I, too, support the amendment. Section 3 represents more than a statement. It represents a commitment to the principles of equality—equality of opportunity, equality of dignity and the responsibility of the state to its citizens.

The EHRC needs a benchmark, a flag, by which it can promote the principles on which it was founded. It needs to be measured, not against the principles of race, disability or gender, but in a much wider context, because it makes a statement about the sort of society we are, the aspirations that we hold for ourselves, and the signals that we send far and wide.

In that context, if the amendment before this House is not embraced, we will be sending a negative statement. We will be saying that after all that we have achieved over many years in terms of race, gender, disability and children, we have turned around and are heading in a totally different direction. It is not my belief that that is the Government’s intention: I believe that the Government’s intention is to continue to improve the standards and opportunities of all their citizens. However, in any journey, we all sometimes take a wrong turn; I genuinely believe that on this occasion, the Government—with all their good intentions—have got it wrong. It is for those reasons that I ask the Minister to look again and to say to the Government that so much depends on their credibility with a vast swathe of this nation and its citizens that to take this wrong turn would be an inevitable downgrading of the concept of equality of opportunity for all. We all believe in that principle and it is in that spirit that I support the amendment, but more importantly, I ask the Government to think again.

[Lord Lloyd of Berwick]

My Lords, I cannot begin to emulate the eloquence of the speech that we have just heard. I too regret that I was not present when this matter was discussed in Committee on 9 January but, after reading Hansard, it is clear to me that the debate was of an exceptionally high standard, particularly the contributions of my noble friends Lady Campbell of Surbiton and Lord Low of Dalston. Unfortunately, my noble friend Lord Low cannot be here today; I cannot begin to take his place, but I agree with everything he said in that debate.

There is another person who cannot be here today for a different reason. He was mentioned by the noble Lord, Lord Wigley, as one of those who led the way in this area of the law in the 1990s and long before that. I refer, of course, to the late Lord Morris of Manchester. It is not difficult for me—or I suspect, anybody else in the House today—to imagine what Lord Morris’s reaction to the proposed repeal of Section 3 would have been. I do not doubt for one moment that he would have regarded it as a serious backwards step, and he would have said so in his usual trenchant terms.

I want to deal first with the argument of the noble Lord, Lord Lester, as a lawyer—I am sure that his heart was not really in it—that if we leave out Section 3 we are losing nothing. Secondly, I want to comment on the reasons given by the noble Baroness, Lady Stowell, at the end of her reply for the Government’s decision to repeal Section 3. The noble Lord, Lord Lester, gave two reasons for his view. The first was that Section 3 was purely aspirational, so it would make no difference if it were repealed. It contained nothing, he said, that could be enforced in a court of law.

However, if that argument were correct, it surely proves too much. If Section 3 is purely aspirational, so, surely, are Sections 8 and 9. How would the noble Lord enforce in a court of law the duty under Section 8 to promote understanding of the importance of equality and diversity? How would he enforce in a court of law the commission’s duty under Section 9 to promote understanding of the importance of human rights? If the legal argument of the noble Lord, Lord Lester, were correct, it would surely mean that we should repeal not only Section 3 but Sections 8 and 9, which would leave us with absolutely nothing. Of course, the truth is that the argument is misconceived. Recent legislation is littered with examples of duties which cannot be enforced in a court of law but serve, nevertheless, a very useful purpose. For example, Section 1 of the Constitutional Reform Act 2005 provides that:

“This Act does not … affect … the existing constitutional principle of the rule of law”.

How is that to be enforced in a court of law? However, it serves an extremely useful purpose.

Another example that occurred to me is Section 1 of the Climate Change Act, which provides that:

“It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”.

How—perhaps I should say, when—is that duty, clearly stated by Parliament, to become enforceable: in 2048, 2049, or when? Therefore, with respect, that argument carries very little weight. For all those reasons, I suggest, with the utmost delicacy, that the legal argument of the noble Lord, Lord Lester, should not deter us in any way from supporting this amendment.

However, the noble Lord had a second argument. He said that there is nothing in Section 3 which is not also contained in Sections 8 and 9, so Section 3 is in effect otiose. I suggest that he is wrong, but suppose for a moment that he is right: if Section 3 adds nothing to Sections 8 and 9, how is that consistent with the Government’s argument all along that Section 3 is too broad? As the noble Lord, Lord Low, pointed out, the Government simply cannot have it both ways. I suggest that he was right. In truth, Section 3 does indeed add something which is not in Sections 8 or 9, and something of the very greatest importance. It provides for the first time in legislation the unifying link between equality and other fundamental human rights. This was the point made by Sir Bob Hepple in his memorandum, which I hope the noble Baroness has read, and which has already been referred to by the noble Baroness, Lady Lister. That deserves an answer and I hope that it will get one. Indeed, the assertion of a unifying principle in Section 3 was surely one of the main objectives of the 2006 Act, as the noble Lord, Lord Lester, himself pointed out when he was promoting the Bill. Therefore, I again suggest, as delicately as I can, that the noble Lord might in this instance have done better to follow his heart than his head.

[Lord Lester of Herne Hill]

My Lords, I was not intending to speak and it is a misfortune for the House that I now do so, with extraordinary brevity. When I joined this House almost 20 years ago, Lord Alexander of Weedon said to me, “Remember, Anthony, that the House of Lords is not a court of appeal, it is a jury. Try, if you can, to speak to a jury”. I totally disagree with almost everything that the noble and learned Lord, Lord Lloyd of Berwick, has said today, and would do so in a court of appeal. However, when we are dealing with a jury whose sentiment has already been powerfully expressed, I do not think that it would do the slightest good if I were to explain exactly why I continue to hold the view that I did previously.

By the way, I did not promote the 2006 Act, but I certainly took part in debates on it and I did not oppose Section 3. However, being a practical person—I am no philosopher—I shall concentrate in these debates on three practical things: one is caste discrimination, the second is the abolition of the questionnaire procedure, and the third is the relationship between the Joint Committee on Human Rights and the commission. I hope that I shall not speak on anything else.

15:44

[Lord Lloyd of Berwick]

My Lords, I was dealing only with the arguments which the noble Lord advanced in Committee. I thought he might be advancing them again. He has not, but at any rate I have given my answers to those arguments and the House will in due course decide.

I turn now to the reasons—and I am sorry to take so long—given by the noble Baroness, Lady Stowell, for repealing Section 3 as it stands. She gave two reasons and it is as well that the House should actually have them in mind. The first reason is as follows:

“But the problem with Section 3 is that it implies that the commission, uniquely, is responsible for encouraging and supporting the development of such a society. This is patently wrong and arguably insults the efforts that we all make in support of these goals, whether through the work of Parliament, government, the wider public sector, business or the community. We are collectively responsible. We might need the commission’s help, but it cannot achieve an equal society on its own”.

Section 3 provides that the object of the commission is to encourage and support the goals of which we are all aware. But there is nothing that I can find in the words of Section 3 which suggests or implies that the commission is to be solely or uniquely responsible for encouraging and supporting those goals. I fear that, in adding those words, the noble Baroness was reading words into Section 3 which are simply not there and for which there is not the slightest reason.

I fail to see how it can be argued, as the noble Baroness does, that Section 3 is an insult to the work done by Parliament or government or to the public in general. Of course, the commission cannot achieve an equal society on its own. Whoever suggested that it could? So I am puzzled by the first reason given. There is no insult involved. But I am equally puzzled by her second reason, which is as follows:

“We are seeking to repeal the general duty on the commission because it creates unrealistic expectations, positive and negative, about what it on its own can achieve”.—[Official Report, 9/1/13: cols. GC 60-61.]

I repeat, the commission’s job is to encourage and support. How does that create any expectations, positive or negative, that the commission can do the job on its own? What is the evidence that there is any such unlikely expectation and, if there is, that it is due to Section 3?

We are being asked today to repeal a very recent piece of legislation which was regarded as of some importance at the time and was well considered. We should not do so unless good reasons are given. The reasons so far given on behalf of the Government are, to my mind, wholly unconvincing. I therefore support the amendment.

[Baroness O'Loan]

My Lords, in putting my name to the amendment, I would like to endorse the comments made by the noble Baroness, Lady Lister, in relation to the magnificent contribution made by my noble friend Lady Campbell in the context of human rights.

The general duty created by Parliament in Section 3 of the Equality Act 2006 is a profoundly important obligation. It is not vague. Its terms are absolutely clear and quite brief. As Liberty has said, the fact that the commission has not yet fulfilled its potential —and despite its early failings to deliver on its mandate—should not mean that its crucial powers and functions are compromised or circumscribed.

We have heard a description of what Section 3 actually does. It asks the commission to exercise its functions to encourage and support the development of an inclusive society that encourages people to achieve their potential, values diversity, respects the dignity and worth of every citizen, and respects, promotes and protects human rights. It does not, as the noble and learned Lord, Lord Lloyd, said, require the Equality and Human Rights Commission to establish a fair and equal society. That would be vague and impossible of performance. Rather it provides the vision that is necessary to guide the operation of equality and human rights law in this country. It is not uncommon for such a purposive section to be included in legislation. It provides a very necessary statutory underpinning to the operation of equality and human rights law.

When one seeks to work legislation of this type in a day-to-day context, provisions such as this are profoundly important. The legislation that applied to me as Police Ombudsman for Northern Ireland required me to carry out my functions in the way that I thought was best calculated to secure the confidence of the people and the police in the police complaints system. If you were so minded, you could argue that that was similarly vague, but it was not vague at all; it was very precise.

Section 3 provides the principles that are absent from the Equality Act 2010 and which are necessary for the interpretation of that Act. Without it, there would be gaps and deficiencies and, ultimately, Parliament would be required to legislate further on this issue. There is widespread unease and concern, articulated not only in this House this afternoon, at the proposal to remove Section 3—the lobbying has come from wide sectors of society.

I refer to the response of Justice to the Home Office consultation in 2011 on this issue. Justice pointed out that the objectives set out in the general duty were,

“agreed by all political parties in Parliament following amendments proposed by Conservative MPs”.

Justice also stated:

“The General Duty provides a clear mandate which the EHRC must have regard to when deciding how to act. By repealing the General Duty, the mission and very purpose of the EHRC would be altered, and the UK’s commitment to the Paris Principles would be fatally undermined”.

The commission achieved its fundamentally important United Nations “A” status only three years ago. It had to demonstrate compliance with the Paris principles in order to do that. The achievement of “A” status gave it full participatory rights at the UN Human Rights Council and access to other UN bodies. The Northern Ireland Human Rights Commission had had such a status three years previously. That status, with the opportunity for influence and engagement, is important in the context of the international credibility of this country.

Reference has been made by the noble Baroness, Lady Lister, to Professor Sir Bob Hepple’s statements. He has stated that repeal will remove the unifying principle to which both the Lord Chancellor and the noble Lord, Lord Lester, referred when promoting the Equality Act 2006—the link between equality and other fundamental human rights. At the core of the commission’s general duty, and implicitly underlying the specific rights against discrimination, harassment, victimisation and the positive duty to advance equality, is respect for and protection of each person’s human rights.

This is not merely a political statement. It is the difference between the commission pursuing a society in which everyone is treated well and one in which law can be complied with simply because everyone is treated equally badly. When the Commission for Racial Equality investigated ill treatment of black prisoners prior to the creation of this commission, the defence given by the prisons was that white prisoners were treated equally badly. That was a legally sound defence. However, the operation of Section 3 ensured that a use-of-force policy against young men in detention had to be abandoned when the commission intervened. Had Section 3 not existed, the Home Secretary could have simply reconsidered the matter and reissued the policy.

I have seen no evidence that Section 3 has been in any way a hindrance to the operation of the commission, equality law or business. It is a necessary framework within which our equality and human rights law operates. The commission is facing the harsh reality of trying to maintain its UN “A” status while suffering from 76% budgetary cuts and 62% staffing cuts. It will struggle. If Section 3 is lost, the commission will be reduced in status and clarity of mission and purpose. That would be detrimental to the governance of our society.

[Baroness Hollins]

My Lords, I, too, support these amendments, and I congratulate my noble friend Lady Campbell of Surbiton on her perseverance in this matter.

The lack of respect shown to patients at Winterbourne View and at Mid Staffordshire shocked all of us. Laws must start with values and principles and not rely solely on regulation; nor should they assume, for example, that all public servants automatically hold and understand those values. The Government say that legislation is no place for declaring a mission but I disagree, and there are many people in the Chamber today who also disagree. For example, the Care and Support Bill includes principles which are perhaps individually unenforceable but they are critical because they remind us all that the primary purpose of care and support is ultimately to support the well-being of people. If we want to know how well our care and support system is doing, the well-being of older and disabled people and their families is our litmus test. Section 3 serves the same purpose. It imports these enduring values and principles into the duties of the EHRC and reminds it and us that, above all else, its role is to ensure that, as a society, we are upholding them.

A much celebrated initiative of the EHRC has been its inquiry into the human rights of elderly people receiving care in their own homes. The inquiry uncovered how the human rights of some older people were being placed at risk by care providers who required their staff to carry out tasks such as helping people to wash, dress or eat in time slots of 15 minutes or less. The dignity of older people was not being respected by a system which most assumed to exist principally for that purpose. It also highlighted how, as a consequence of outsourcing home care to private and voluntary sector providers, coupled with a narrow judicial interpretation of the meaning of “public authority” under the Human Rights Act, the majority of older people receiving care in their own homes could not rely on the Act to protect them.

That inquiry looked beyond existing law. It identified anecdotal evidence of an emerging situation, investigated it and made recommendations, including for law reform but equally for practice. It involved a particular constituency—older people—in circumstances where the values and principles of dignity and respect were being placed at risk but in which there were not at that time any legal cases to claim that human rights had been breached. This is not the sort of work that can be undertaken by charities. Charities are not the experts in equality and human rights. They can provide evidence but not leadership. They look to the EHRC to lead and promote.

[Lord Cormack]

My Lords, I shall intervene just briefly. I was in hospital when this was debated in Committee, but I was very taken by the speech of the noble Baroness, Lady Campbell of Surbiton—the Surbiton charioteer, as I think of her—who spoke with a verve and passion and with considerable conviction. Everybody has spoken in like terms and it seems to me that there has to be a convincing answer from my noble friend on the Front Bench if we are not to go along with this amendment in one way or another.

There is a place for the declaratory. This House said that last Thursday, when, by a pretty large majority, it passed what was in effect a declaratory Motion. There is a place for the aspirational in legislation. There are many precedents and it would take too long even to begin to give examples, but I hope that my noble friend will, at the very least, say to the House this afternoon that she will reflect further on this, if she cannot accept the amendment now, and come back on Third Reading with a definitive answer. I hope that the door will not be shut today.

[Baroness Howe of Idlicote]

My Lords, I also intend to be brief. Having listened to all these speeches, which are so resonant of what has been said on many other occasions, I particularly congratulate my noble friend Lady Campbell on her brilliant speech. Equally, we have heard from the noble Lord, Lord Lester, a marvellous argument from the legal viewpoint about why it would be quite absurd to get rid of this clause. Section 3 helps us to achieve that commitment to equal opportunity, and to dignity and respect for others from different ethnic backgrounds, for those with disadvantages and for older people who, as we have just heard, will live much longer and have to cope with increasing disabilities as they grow old.

16:00

One issue which struck me is the time it has taken to achieve the steps towards equality of opportunity that we already have, and how long we will need to complete the task. This clearly indicates to us that we need every form of additional commitment to let us achieve it. A tiny example is Business in the Community, which has played an important role in lots of ways. It set up a committee looking into this subject, called Opportunity 2000. Surprise, surprise, a little further on, guess what it decided to change the name to? Opportunity Now. That is what we need: opportunity now to achieve this with all the added bits of legislation. There is clearly no time and no need to get rid of this clause. It would be quite absurd, and I say to the noble Baroness responsible for replying that she will need to use her considerable influence on her Government to achieve what we all want. She will have to do it because it would be quite absurd to resist the opinions that we have heard and the excellent background to what has been said.

[Baroness O'Neill of Bengarve]

My Lords, I begin by declaring an interest as the chair of the Equality and Human Rights Commission. I have appreciated the arguments made on this by many noble Lords, including many noble friends. I can say only a limited amount from the position that I occupy, but I should at least remind your Lordships of the position that the commission has taken on the removal of Section 3. This is not a new position since I became chair, but one that was already taken when my predecessor Trevor Phillips chaired the commission. It is summarised in one sentence. It is not a sentence of high enthusiasm, but it states the balance of the issues. It says,

“on balance, the Commission concludes that the changes currently proposed are unlikely to have a significant adverse impact on its work”.

That is partly because other sections still preserve the wider duties, but it is also because the very task of an equality and human rights body is, by its nature, aspirational. That is to say, nobody goes into this domain without profound aspirations for respecting the human rights of each and every one of us in this country and their equal treatment.

[Baroness Thornton]

My Lords, I am greatly honoured to follow the lead offered by the noble Baroness, Lady Campbell, and all the speeches that have been made today. When you are on the Front Bench, it is always easy to put your name to amendments but on this occasion I felt that it was very important that the Government heard the voices of the Back Benches of your Lordships’ House. I felt—as has been proved to be the case—that people would feel passionately that the Government are in the wrong place and that Section 3 should not be removed.

I have two questions for the Minister. The first partly follows the remarks made by the noble Baroness, Lady O’Neill. It concerns the recent briefing from the EHRC, which states that, on the one hand,

“that the inclusion in its founding legislation of a unifying principle to bridge equality and human rights is important”,

but that, on the other hand, perhaps the answer to the dilemma of Section 3 would be a simpler purpose clause which described the commission,

“as the national expert on equality and human rights”,

and the strategic regulator for equality. It is not quite the poetic and aspirational language in the current legislation. Do the Government regard this intervention at this stage of the Bill as helpful or not?

I think that it muddies the water quite considerably. It adds force to the argument put by the noble Baroness, Lady Campbell. Let us be clear, the Government started by wanting to delete the section completely for reasons which the noble and learned Lord, Lord Lloyd, has demolished. However, if they want to change it and if the EHRC is suggesting that it should be changed, this is surely not the place to do so. This has to be a matter of great consideration and discussion among all the different organisations and across both Houses of Parliament. That was the import we gave Section 3 at the beginning in 2006. I suggest that the latest intervention by the EHRC on this matter serves only to underline the case that we should not go down the route proposed by the Government.

My second question is why does not one single stakeholder organisation—I apologise for that phrase, but I cannot find a better one—agree with the noble Baroness and her Government? Why does she think that Sir Bob Hepple has given the advice that he has about Section 3? Has she had discussions in the past month with the bodies which care about this matter? If so, what is the outcome of those discussions? Given that the Government are in absolutely no doubt that all these organisations are concerned about this and do not want this change to happen, have the Government had discussions with them? Have any discussions influenced their position? I hope that their position will be that they will accept this amendment. Certainly, from these Benches, we are adamantly opposed to the deletion of Section 3. If the noble Baroness, Lady Campbell, decides to test the opinion of the House, we will be with her.

[Baroness Stowell of Beeston]

My Lords, this has been an important debate and I am grateful to all noble Lords who have contributed. We have covered an important matter about which we all feel strongly. We all want a society based on equality of opportunity which respects human rights. I pay tribute, as I did in Committee, to all noble Lords who have worked hard in this arena over many years. I especially pay tribute to the noble Baroness, Lady Campbell, not just for everything that she has done but for the very open and straightforward manner in which she and I have discussed her amendments at various stages of the passage of this Bill. I really am grateful to her for that.

A lot has been achieved since we last debated this issue. We have appointed new commissioners and the commission’s budget has been announced. I will come back to these points later today when we debate the accountability of the commission in the final group of amendments. First, I shall be absolutely clear about what this Government seek to achieve via this Bill. We want a strong and independent Equality and Human Rights Commission which promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as for being a strategic enforcer of equality law.

Under the leadership of the noble Baroness, Lady O’Neill, who is respected and renowned the world over for her evidence-based approach, we are confident that the commission’s work will be respected, but in order for her, her board and its successors to determine their priorities and agree a coherent strategy, we must first be clear on the purpose of the commission.

The commission has done some good work since it was established in 2007—most recently, the inquiry into the home care of elderly people and the disability harassment inquiry, among other things, which were referred to by the noble Baroness, Lady Hollins. Let me be clear: removing the general duty would not prevent this kind of work taking place in the future. I will explain in a moment why that is the case. However, we also have to acknowledge that the commission has not been universally acclaimed as a national institution. Indeed, it has been criticised for the way that it has been run. Poor financial management resulting in qualified accounts was the most serious evidence of its failures.

In the past couple of years things have started to improve. Indeed, the past two sets of accounts have been clean and substantial savings have been made. I pay tribute to all those who played their part in that, which includes several Members of this House. However, when an organisation seriously underperforms, it would be negligent not to understand what caused those problems and take steps to put things right. As most successful leaders, whether they are in business or politics, will testify, when things go wrong in an organisation it is often because the organisation lacks clarity of purpose. Indeed, they will argue that for any organisation to be successful, it needs clarity of purpose.

The general duty is not a core purpose. It is a statement with which we all agree, but it is not a purpose. As I said in Committee, that statement for the general duty includes the requirement that:

“We must encourage and support the development of a society in which: People's ability to achieve their potential is not limited by prejudice or discrimination. There is respect for and protection of each individual's human rights”,

and goes on. If the statement were enshrined exclusively in statute and described as the commission’s general duty, that would imply that the commission is responsible for encouraging and supporting the development of such a society on its own.

I know that the noble and learned Lord, Lord Lloyd of Berwick, questioned my reasoning, but I stand by it. The Government’s argument remains that several institutions—Parliament, the Government, other public sector organisations, business and everyone—are collectively responsible for achieving the kind of society that that general duty sets out. Having such a wide-ranging and unrealistic general duty would make it harder than it should be for the commission to prioritise its work. That would be the case for any organisation given that general duty.

The noble Baroness, Lady O’Neill of Bengarve, made clear in her contribution the commission’s view of what the Government are proposing, and I am grateful to her for that. She said that while the commission lacks enthusiasm in the language that uses for the Government’s proposals to remove the general duty, it none the less acknowledges that it would not impact significantly on its work. She also agreed that that general duty is aspirational, the nature of the Equality Human Rights Commission is for it to be aspirational and that that is not required to be set out in statute.

The noble Baroness, Lady Campbell, the noble and learned Lord, Lord Lloyd of Berwick, and other noble Lords referred to the memo from Sir Bob Hepple and questioned the unifying link that Section 3 provides between equality and human rights. The commission can perform its functions under its duties in respect of equality under Section 8 and of human rights under Section 9, so that any unifying link between these two concepts provided by the duty is not essential. As the commission made clear in the briefing distributed at the end of last week, it sees the general duty as symbolic rather than practical.

The Government are clear that the commission’s core purpose is to promote equality and to protect human rights. These duties are set out in Sections 8 and 9 of the 2006 Act. They are supported by a suite of enforcement powers in that Act, such as conducting inquiries and investigations, issuing compliance notices or entering into agreements with organisations and instigating or intervening in judicial reviews or other legal proceedings.

16:15

In her opening remarks, the noble Baroness, Lady Campbell of Surbiton, referred to the banking crisis and argued that the removal of the general duty would prevent the commission becoming involved in addressing the kinds of problems associated with that. I would make a different point. To put it in its simplest terms, Sections 8 and 9, covering equality and human rights, should inform the commission’s strategic and business plan—in other words, its proactive work—and its enforcement panels are what authorise it to act when it suspects unlawful activity is occurring. So there is in the Act, without the general duty, the clarity that is necessary to inform the activity that the Equality and Human Rights Commission rightly needs to be able to carry out, which is important to it and what it is there to do. As I stated in Committee, the repeal of the general duty will neither stop nor hinder the commission’s ability to fulfil its important equality and human rights duties. I believe that by providing the clarity which will come through removing the general duty we will help it become more effective.

There is nothing to stop the commission reflecting the contents of the general duty in a mission statement, if it feels that that would help it in its work. Several noble Lords asked me to respond to the proposal circulated by the commission at the end of last week about an alternative to the general duty, reflecting some other kind of language. Let me be absolutely clear: the Government are not proposing an alternative to Section 3. We are clear that Section 3 is not required; if the commission decides it wants to produce its own internal mission statement, that is a matter for it.

Amendment 72, tabled by the noble Baroness, Lady Campbell of Surbiton, is about monitoring duty and seeks to halt the changes to Section 12 of the 2006 Act. I reiterate the point I made in Committee that this change is being made to ensure that the commission reports on progress against its core equality and human rights duties. It is a consequence of the changes that we are making to remove Section 3. It will also amend the reporting cycle from three to five years. As I also stated in Committee, I should like to be clear that there is nothing to stop the commission reporting more frequently if it wishes to do so. Our change would simply reduce the risks of overburdening the commission with reporting obligations and of it being unable to fulfil its duty of monitoring progress adequately.

The commission has had a difficult birth, but it has also done some good work. I believe that, with a clarified legislative mandate, the commission will continue to promote equality of opportunity, tackle discrimination and protect and promote human rights. It will be able to do so more effectively than before and so will gain the respect we all want it to have as our equality body and national human rights institution.

I hope that, in responding in this way to the noble Baroness and all noble Lords who have contributed to the debate, I have given an assurance of what we expect from the commission as well as of the importance we attach to it and to the work it does. I hope that I have also been able to give the noble Baroness the assurance she needs that, in making these changes, we believe the result will be that the commission will be able to exercise its responsibilities more effectively than it has been able to until now.

[Baroness Campbell of Surbiton]

My Lords, I thank all the supporters of my amendment because they have expanded the argument by bringing forward evidence with brilliance and accuracy. I also thank the Minister. She is right to say that we have spent honest time together discussing this issue in great detail and she has tried hard to understand and reflect upon the arguments, but I have to say that I am disappointed with her reply. As the noble Lord, Lord Cormack, suggested, I thought that perhaps we could come back at a later stage to discuss an alternative that would meet the requirements of noble Lords who have participated in this debate. Like many organisations—I would say all of them—we feel that this is an area of enormous significance in terms of culture change in this country. I do not feel that Section 3 hindered in any way the difficulties faced by the commission when it came to merge.

When three major commissions at different stages of their growth and liberation are merged and, at the same time, another three strands are added, people are brought together to work on a totally new concept. I am not surprised that the commission had a difficult few years. I have merged two organisations and it took me five years to get them to work together successfully and well, so I do not think that that is a good argument. I do not agree with the arguments around wideness and ambivalence or on the fact that Section 3 somehow takes the rudder away from the Equality and Human Rights Commission. It does not; it just puts some passion into those sometimes very dusty legal arguments.

I have reflected deeply on this and worked hard to understand all the arguments for and against, but at this time we need to listen to and test the House to see what it has to say.

16:23

Division 1

Ayes: 217

---

Labour: 147
Crossbench: 52
Liberal Democrat: 8
Independent: 2
Bishops: 1

Noes: 166

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Conservative: 120
Liberal Democrat: 34
Crossbench: 8
Ulster Unionist Party: 1

16:36

Amendment 72 agreed.

Amendment 73

Moved by

[Lord Harries of Pentregarth]

73: After Clause 57, insert the following new Clause—
“Equality Act 2010: caste discrimination
(1) The Equality Act 2010 is amended as follows.
(2) After section 9(1)(c) (race) insert—
“(d) caste;”.”

[Lord Harries of Pentregarth]

My Lords, this amendment seeks to add the word “caste” into the Equality Act 2010 and I will very briefly sketch in its background. The Dalit communities in this country, which are about 480,000 strong, have been concerned for some time about discrimination against them. The previous Government, aware of this, introduced an order-making power into the Equality Act 2010 and to assess the evidence commissioned a report from the National Institute for Economic and Social Research. The NIESR concluded that there was discrimination in the areas covered by the Equality Act; namely, education, employment and the provision of public goods and services. It recommended legislation as one of the ways of dealing with this.

The present Government, understandably, wanted time to consider this issue but on Friday gave their response. They recommended that discrimination be tackled by education first rather than by triggering the order-making power in the Act. The Dalit communities in this country are deeply disappointed by this long-awaited response. Indeed, there are more than 400 community leaders from all over the country expressing their feelings outside the House at the moment. I find it disappointing and genuinely distressing because not only are the recommendations a distraction from the real issue but they could cause a great deal of hard feeling and resentment and be seriously counterproductive.

I want to explain briefly why I believe this to be so. It is natural in every society for people to mix with other like-minded people—those with the same education, background, religion, class or occupation. If sometimes this goes along with feelings of superiority to other groups this is reprehensible but when it is manifested only in social life it is not a matter for legislation. By focusing on education there is a huge danger that these kinds of social distinction will become blurred and confused with the real issue of discrimination in the public sphere when people are not employed or are harassed in their jobs because of their caste. An education programme, however sensitive—and frankly one wonders how on earth this one is going to be costed—is likely to be regarded as patronising and interfering, while at the same time distracting from the essential issue.

We hear that there is opposition to triggering the order-making power. I find it very difficult to work out what are the grounds of this opposition. The NIESR is a highly reputable academic body, well used to doing this research, and it has concluded that there is clear evidence of discrimination in the public sphere. Therefore, I wonder about the Government’s second recommendation, which is that the Equality and Human Rights Commission should be asked to look again at the evidence. Is there something flawed with the original evidence? Why is it being asked to look at it again?

Another possible reason is that discrimination does indeed exist, as the Government seem to accept, but should be tolerated. That position would be quite unacceptable to all your Lordships. So we come to the third reason. Is the law really needed? We know that in the case of legislation on race nothing has been more effective in reducing racial prejudice than the law. It has had a most powerful educative effect. Nothing could be more significant and effective in reducing discrimination on the grounds of caste than to have a clear-cut law saying that discrimination in the public sphere will not be tolerated. India, Bangladesh and Nepal all have laws against discrimination on the grounds of caste. The problem in those countries is that the caste system is so deeply entrenched that the laws are not properly enforced. The situation in this country is very different. The law is, on the whole, effective. If other countries see nothing shaming in having a law, why should we?

There are something like 200 million Dalits in the world and the institutionalised prejudice against them is one of the most degrading and humiliating forms of rejection invented by cruel human beings, of which being confined to jobs such as manual scavenging is only one expression. It is indeed a surprise and a shock to learn that caste prejudice has come to this country. It is not, of course, in that extreme form but we need to show that in any public form it is totally unacceptable. We can do that quite simply and clearly by accepting this amendment.

At the moment, when a person believes that they have been discriminated against because of their caste, they have no legal means of redress. Someone I once interviewed had had a good training in India as a medical technician and was employed by the NHS in this country. All went well until this person asked their Asian boss for leave to go back to India for a family wedding. There then followed a set of highly intrusive questions about their family background, after which the person’s life was made hell for the next year, which nearly brought on a breakdown. The trade union that he consulted thought that he had certainly been the subject of unfair discrimination and harassment, but had to advise him that at the moment it was not possible to bring a case for discrimination on the grounds of caste.

Even if there are likely to be few such cases, it is essential that there should be a proper means of legal address for those that exist. I appreciate that the Government are serious in wanting to do something about caste discrimination but I honestly believe, for the reason I have given, that their education programme could turn out to be highly counterproductive. No less importantly, it will blur the issue and distract attention from what is really needed: a clear legal signal that discrimination in this country in the public sphere—in education, employment and the provision of public goods and services—is quite unacceptable. I beg to move.

16:45

[Lord Deben]

My Lords, I put my name to this amendment because it seems a very fundamental and simple question. Is it right that a person who is a subject of Her Majesty in this country shall not be able to claim against discrimination when they would be able to in India or Nepal, or indeed in Bangladesh? Is it right that when we have clear evidence that caste has become a feature in this country, they have no defence against it?

I have had very informative and helpful discussions with the Minister responsible in another place and the usual extremely well thought-out discussions with the noble Baroness. It is with considerable sadness that I have to say to her that I am not convinced by the Government’s argument. First of all, it has only just become the Government’s argument. In opposition, the Conservative Party said that this was necessary because it was the only way in which more than 400,000 of Her Majesty’s subjects could properly be protected. If it were possible for the Government to explain to the House that in taking office there were circumstances of which they were unaware that changed their mind, then I would be happier.

However, that is not the argument that has been put forward. What has been suggested is that we need to have yet another investigation. As the noble and right reverend Lord, Lord Harries, rightly says, the investigation by the previous Government was not by some small, unimportant body without respect, but by exactly the people to whom one might turn to find that answer, and their answer was unequivocal. It seems difficult to suggest there should be yet another investigation unless there is a clear statement of what has changed since that one, what was missed out by that one or what the Government felt should further be looked at which had not been looked at. Yet that is not anywhere in the Government’s response.

I believe we have to look at this extremely carefully for a reason which will be perhaps more understood on these Benches than anywhere else. If there is one thing that really annoys people about immigration, it is when people bring to this country attitudes that are wholly contrary to the traditions of Britain. That is why people have reacted so firmly against the attempt, for example, to introduce Sharia law into this nation. Most people in Britain feel that we have a society that should be welcoming, but it should be welcoming on the terms of the tolerance that has been so much part of our history.

There are, after all, fewer Jews in this country than there are Dalits. They are wholly protected under the laws. There are fewer Sikhs in this country than there are Dalits, but they are wholly protected under the laws. Most people would say that there is no place for discrimination by caste in Britain. If there is no place for that discrimination, how can it be that all the other discriminations for which we think there are no place are covered by the law but this one alone is not?

I have to say to my noble friend that I find the arguments used deeply distressing because they go like this: first of all, that we do not know quite enough about it so let us have a further investigation. Frankly, having had the investigations up to now, if it turns out that there are no cases, what harm will have been done? We will have protected people and they will feel protected. If it turns out the investigation that took place under the previous Government was unnecessary and its findings were not true, then we have done no harm. However, if we leave it for another year—and I am told, with some authority, that we will have to wait only a year for a further investigation—we will have another year in which people have no recourse, and at the end of that we may still have no recourse, because there will not necessarily be a legislative opportunity for us to bring this home to the Government.

The second reason that I find so difficult to hear is that we will not deal with it that way anyway, but will deal with it through education, with or without the investigation. Here I do not want to follow the noble and right reverend Lord, Lord Harries, except to say: what do people say in this education? A Dalit in a class says “Okay, I shouldn’t be discriminated against, but what happens if I am?”. The fact that there is now education on this means that the answer will be, “Tough luck, because there is nothing you can do about it, as we have specifically refused to ensure that there is an opportunity for you to take your case”. That is a recipe for lack of integration, poorer community relations, and a worse situation than would have arisen had we had no education or had not raised the matter in the first place.

The third reason that comes up is one that I find more distressing than any other. Every Minister who speaks about it—and we have two Ministers of particular quality here—assures me that they are totally committed to the eradication of discrimination, which includes the eradication of discrimination on the grounds of caste, but that theirs is a better way to do it. I believe that a decision has been made somewhere else that is not on this ground at all, and is not worthy. It is no good listening to those who, in their own circumstances, have a view of caste that is different from that of the majority of us in this House.

In Britain no one should suffer discrimination on the grounds of anything that they cannot help. They cannot help their sexual orientation and their colour; they very often cannot help their religion, or they have chosen that religion; and they cannot help their gender. What on earth is different when they cannot help their caste? You can change the name from “untouchable” to Dalit, but you cannot change the fact that some people are treated in an appalling way, simply because of the person they were born.

I have absolutely no doubt that it would be utterly wrong for us to say to the world that we had the opportunity to protect people from this disgraceful discrimination but decided not to do it because we had to have another investigation. I invite all noble Lords to look back on the history of the fight against discrimination. What happened at every point? Those who did not want to change suggested that we looked again and examined it once more. They said, “Let education deal with it; it’ll all come right in the end”. It was only when we changed the law, however, and made it wrong not only morally but legally as well, that we actually had a change in attitudes and gave the protection which was needed.

I want to finish by saying something very tough: if anybody in this House has any history of discrimination—whether it is the small amount that Catholics have today, which is still real, or the great amount that people have because they are of colour or Jewish or in any other minority group—let them make sure that they do not fail the Dalits, because they have a greater responsibility than those who are lucky enough not to have suffered discrimination as a subject of Her Majesty.

[Lord Avebury]

My Lords, I have seldom listened to a more powerful speech in this House. I agree with every single word that was said by the noble Lord, Lord Deben, except for one very minor point which has to be mentioned. The Government are not proposing to undertake any further investigation, but simply to review the investigations that have already taken place. Therefore, what they are proposing to do is of even less consequence than he credited them with.

We already know, from the study undertaken by the National Institute for Economic and Social Research—which was mentioned by the noble and right reverend Lord, Lord Harries, in introducing this amendment—that caste discrimination actually occurs in the United Kingdom. That study confirmed that discrimination and harassment of the type that would be dealt with under the Act exists in the UK, as was reiterated only the other day in a letter from one of its authors, Hilary Metcalf, to my noble friend Lord McNally.

The Government now recognise the existence of caste discrimination. As the Minister for Equalities said, in words very similar to those used by my noble friend Lord Deben just now,

“We obviously do not think that anyone should suffer prejudice or discrimination, whether it is because of caste or any other characteristic. Such behaviour is wrong and should not be condoned, whether or not it is prohibited by legislation”.

However, no Minister has explained properly, in the extended correspondence that we had with the Government over the past three years, why caste should be treated differently from age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation—the protected characteristics that are already covered by the Equality Act.

The Minister Helen Grant MP wrote to us on 5 February, saying:

“We need to be satisfied that it is the most appropriate and targeted way of tackling a specific problem before legislating”.

I respectfully suggest that Parliament wisely decided that legislation was indeed the right way to tackle discrimination across the board after many years of trying to apply remedies to particular kinds of discrimination such as for race—with the Race Relations Board—or gender, by compliance with the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. Nobody ever said that before including race and gender in the Equality Act, we needed to be satisfied that it was the most appropriate and targeted way of dealing with the problems that still remained. Legislation was seen as the top storey of the edifice of ways of tackling discrimination of all kinds. The onus is on the Government to prove that, in the unique instance of caste, we should return to non-legal remedies which proved insufficient in respect of the nine existing protected characteristics and are no substitute for the right to take complaints of discrimination to court.

The original reason given by the Government for failing to enact Section 9(5)(a) was that there was no consensus on the need for legislation even among the communities that were potentially most affected by it. We naturally interpreted that as meaning the Dalit communities whose members are the victims of this discrimination. However, it emerged in a letter from the noble Baroness, Lady Verma, to the noble Baroness, Lady Prashar, of May 2012, that the reference was to the wider Hindu and Sikh communities. In that sense, there is never a consensus for legal measures against particular kinds of discrimination. The policy of ending apartheid in South Africa was vociferously opposed by certain groups within the white population. At one time, plenty of men’s organisations were opposed to women’s equality, including, I may say, Parliament itself, and there are still institutions opposed to LGBT rights. Fortunately, the absence of consensus was not used as an argument for blocking legislation for the rights of racial minorities, women or gay people.

However, I realised quite recently that some Hindus and Sikhs believe that what we are seeking to do labels their communities as a whole as persecuting Dalits. I assure them that nobody has any such idea, any more than the Equality Act labels native British as being intrinsically racist, or men as being intrinsically misogynist. There are already cases where litigants such as the Begraj have done their best to use the existing law to make a claim on caste discrimination grounds in the courts. However, there has been no suggestion that a handful of cases point to a general pattern of conduct among people belonging to certain religions.

17:00

Recently, the Prime Minister raised an additional objection that needless red tape, as he calls it, and additional unnecessary cost burdens for business might be caused by this provision. That is not the case. Employers would already have the duty to prevent caste discrimination as part of their general duty of care towards their staff, and to take remedial action if it occurred. The difference would be minor one-off familiarisation costs, plus, of course, the liability of the employer to court proceedings and payment of damages if this amendment is passed, as identified by the Bill’s impact assessment.

The apparent rarity of caste discrimination, judging from the NIESR report, and the fact that employers would already be looking carefully at race anyway, of which caste would be a subset, means that the amount of extra work is likely to be minimal. One suggestion in the letter from Helen Grant MP is that gender reassignment is included in the protected characteristics because of our obligations under EU law rather than because the Government considered that it was wrong in principle to discriminate against transgender people.

The recommendation of the UN Committee on the Elimination of Racial Discrimination, echoed in the UN’s universal periodic review of the UK, that we should include caste in the protected characteristics is also a legal obligation according to the advice obtained by the National Secular Society from lawyers Gráinne Mellon of Bedford Row Chambers and Lionel Nichols, fellow of St Anne’s College, Oxford.

However, there are no sanctions against non-compliance and whether or not the CERD recommendations should be treated as obligatory depends more on the Government’s sense of loyalty to their international commitments than on legal principles. However, it is not good to see the UK in the company of states which flout the recommendations of the Committee on the Elimination of Racial Discrimination.

The Government’s proposals, which we received only a couple of days ago, reminded me of Groundhog Day. We are back where we were three years ago, with the Government commissioning a study, this time on whether caste discrimination is likely to be more effectively addressed by legislation or by other unspecified solutions. This is another act of procrastination, as has already been said, because the question is precisely the one they have been considering since the NIESR report in December 2010.

The Equality and Human Rights Commission, which has been asked to undertake this study, expressed its opinion shortly after I and a few colleagues had a meeting with its legal director, John Wadham, on 25 September last year. It supported the activation of Section 9(5)(a) and issued a statement to that effect which is on its website. I suppose that now Mr Wadham has left the EHRC, it could do a U-turn, but the legal arguments have not changed, nor has the experience of unsuccessful attempts to combat discrimination over many years prior to 2010. I am surprised that the noble Baroness, Lady O’Neill, has accepted such a thankless task, particularly as the Government have given no undertaking that if the EHRC reaffirms its opinion that legislation is the right way forward, the Government will take its advice. Will the Minister clarify that point and indicate what budget the EHRC has been given for this operation?

As for the Government’s other proposal, what funding has Talk for a Change been given for the educational programme on this complex and sensitive issue? In its section dealing with alternatives to legislation, NIESR said that,

“the educational approach is only relevant where people are unaware of caste, i.e. in organisations where senior people are not Asian”.

However, NIESR emphasised the educational side-effects of legislation. It said:

“Because of discrimination legislation, employers, educators and providers of goods and services developed non-discrimination and anti-harassment policies. These not only provide structures for redress, but also lead to much greater understanding of the issues and reduce the acceptability of such discrimination and harassment. In the case of caste discrimination, this educational effect is particularly necessary because the vast majority of the population is almost entirely ignorant of caste issues”.

Therefore, legislation would have meant that money being spent on both EHRC and Talk for a Change could have been saved. I do not believe the Government’s antipathy to legislation is really to do with the cost. What is certain is that, just as the Home Secretary and the Lord Chancellor are bent on reducing the means of legal redress available to victims of human rights violations—about which we read in the press every day—as part of this mindset, there is a doctrinal aversion to this proposal in the Cabinet, which is not going to be eliminated by any number of studies and failed alternatives. It is time for the House to make a decision.

[Lord Alton of Liverpool]

My Lords, I want briefly to intervene in order to support the amendment that has been laid before this House by my noble and right reverend friend Lord Harries of Pentregarth, and to support the powerful speech made by the noble Lord, Lord Deben, and the intervention by the noble Lord, Lord Avebury.

As I heard their speeches, I was thinking of two things that I have in my study. One is a poster on the wall that says:

“God so loved the world that he did not send a committee”.

I recalled that it was William Wilberforce who, after the abolition of the slave trade, said that the next great challenge was the abolition of the caste system. Here we still are setting up yet more committees and more inquiries. I really do not believe that that is the signal that we want to send today.

The other thing in my study is a terracotta pot that I brought back with me from Uttar Pradesh two years ago. When a Dalit has held that pot, they are required to break it, because nobody else must touch it if they have drunk from that pot. That is what it means, in simple terms, to be untouchable. Those two simple things motivated me to speak in this debate.

I know that my noble friend has pursued this issue with great vigour and doggedly over the years, and I think that the House ought to support him today not least because, as we discovered in the earlier amendment, the importance of making declamatory statements is sometimes crucial in advancing a cause. The Minister should perhaps recall the wise advice that was given to her on an earlier amendment by my noble friend Lord Cormack. He suggested that if she were not able to accept that amendment today, it would be wisest to come back at Third Reading. The same is true with this amendment. She ought to go away and think about it further if she cannot accept the amendment today, not least because of the declamatory nature of not accepting it.

What signal will that send to the extraordinary number of people who remain in India as Dalits, some 170 million of them in addition to the 400,000 in our own country? When the House considers that every single day in India every 18 minutes a crime is committed against a Dalit; every day three Dalit women are raped; two Dalits are murdered; two Dalit houses are burned; 11 Dalits are beaten; that many are impoverished; some half of Dalit children are under-nourished; 12% die before their fifth birthday; vast numbers are uneducated or illiterate; and 45% cannot read or write it is quite clear that we do not need more inquiries or studies. We have to be certain about what it is that we want for ourselves. The noble Lord, Lord Deben, is right: there are values that we hold dear in this country that we stand for and believe in. We must stand firmly on those principles, not suggest to others that somehow or other to import those kinds of conditions into the United Kingdom would ever be acceptable. Furthermore, however important things such as trade relations are—and they are important to British industry in developing cordial and good relations with India or China—none the less, the stand we take on upholding not just human rights but human dignity, and the belief that no one is untouchable and that every person is of equal value, certainly in the sight of God and as they certainly ought to be in the sight of their fellow human beings, are important. For those reasons, I am happy to support the amendment of my noble friend.

[Baroness Flather]

My Lords, perhaps I may say a few words as the only person here to belong to a caste. As far as I know, there is no other Hindu in the Chamber.

[Lord Singh of Wimbledon]

Yes, there is. There is the noble Lord, Lord Dholakia.

[Baroness Flather]

I apologise to the noble Lord. We know very well what a terrible and shameful thing the caste system is for us Indians. Two issues are the most shameful in Hindu culture—caste and dowry. Both have significant effects on people. Dowry leads to the aborting of girl foetuses and the killing of girl children. Caste puts people down; a whole group of people are there to do the worst jobs that no one else will do. That can never be right.

The problem is that Hindus are discriminating against other Hindus. Very few British people understand the caste system or even know what caste means, other than that there are higher and lower castes. Hindus in this country discriminate against lower-caste Hindus. That is so appalling and unacceptable that I cannot understand how it can be allowed to go on. In India, as the noble Lord, Lord Alton, said, the caste system is getting worse, not better. When India became independent in 1947 and Gandhi started a campaign to allow lower-caste people to do all different levels of work, we all thought that by now there would be no caste system in that country. There was a great hope that the caste system would die out. It has not done so but has got worse. People have killed their own children because they have married a person in a different caste. There are organisations in Delhi that find and bring back young people who run away from their villages to escape the wrath of their parents. They pick them up and bring them to their parents, who have them killed. It is not a joke in India. It is horrible.

We have heard that there are laws in India, Bengal, Bangladesh and Nepal. Those laws are not enforced. No one cares about them, and a few rupees will buy you the willingness of anyone from a different caste to help out, so there is no question of the laws being effective. That also applies to the laws against dowry and aborting girl babies. None of those laws is enforced. A law that is not enforced is of no use whatever.

If we were to pass the amendment, we would be making the clearest statement that society can make that such behaviour is unacceptable in this country. We also need to state to our own people, the Hindus: “You cannot come here and behave as if you are in India because there are laws here that will be enforced and will not be overlooked”. I know how some children were treated in schools when I was teaching. That was some years ago, and things have got worse, not better. Unfortunately, there are Hindu organisations that are against the amendment and feel that it is targeting them and saying that high-caste Hindus are the ones to blame. Well, they are to blame if this discrimination happens, because they start it. I hope that today noble Lords will accept this amendment. It is a very small thing, but it will mean a lot to 400,000 people.

17:15

[Lord Singh of Wimbledon]

My Lords, speaking from a Sikh perspective, I give my full support to the amendment. Guru Nanak, the founder of the Sikh religion, taught, “Ask not a person’s caste but look to the inner light within”. At a time when even the shadow of a lower caste person was said to pollute the food of a higher caste, he instituted the system of langar, where people of all religions and social backgrounds were, and are, welcomed to share a gurdwara meal. The historic Golden Temple in Amritsar, recently visited by the Prime Minister, has, as he will have noticed, four doors at its sides, signifying a welcome to all people regardless of religion or supposed social difference.

Emphasis on the equal dignity of all human beings is central to Sikh teachings. I was slightly bemused by the readiness of some, including ministerial advisors I have met—and we see the same misinformation in the ministerial statement—to display their ignorance of basic Sikh teachings and, in a near-colonial way, to conflate caste, class and all undesirable social discrimination and religions on the subcontinent in the word “caste”. Attitudes of superiority and inferiority are found in all societies. We should remember the media headline “Prince William marries a commoner”.

Caste has a very precise meaning attached to practices associated with the Hindu faith. It has its origin in the desire of the Aryan conquerors of the subcontinent in pre-Vedic times to establish a hierarchy of importance, with priests at the top followed by warriors, those engaged in commerce and then those engaged in more menial tasks. The conquered indigenous people were considered lower than the lowest caste. Accident of birth alone determined a person’s caste. Sadly, thousands of years latter, and despite legislation by the Indian Government, which has been referred to, this hierarchy of importance still lingers on.

I have gone into detail because it is important to understand what we are talking about when we discuss discrimination on grounds of caste. It is discrimination arising from supposed Hindu religious belief, but what passes for religion is not always all it seems. Caste in no way relates to underlying and uplifting ethical Hindu teachings. It is simply questionable culture that has, over the years, managed to attach itself to Hinduism in much the same way as discrimination against women—

[Baroness Flather]

The caste system was established very early in Hinduism. The Sanskrit for caste is “varna”, which is also the word for colour. The noble Lord mentioned the Aryan conquerors, who were supposed to be lighter skinned. They wanted a division not only on the basis of who would do what but on the basis of colour.

[Lord Singh of Wimbledon]

I thank the noble Baroness for that. I repeat: caste in no way relates to underlying and uplifting ethical Hindu teachings. It is simply questionable culture that has, over the years, managed to attach itself to Hinduism in much the same way as discrimination against women is seen by some as part of their faith.

The Sikh gurus were acutely aware of such negative cultural practices, and they openly discussed and criticised the prevalence of rituals, superstitions and cultural practices contrary to underlying ethical teachings. At a time when all religions all around the world were emphasising difference and exclusivity, the Sikh gurus stressed the importance of showing respect for sister faiths. The fifth guru, Guru Arjan, showed his respect for Islam by asking a Muslim saint, Mian Mir, to lay the foundation stone of the Golden Temple. The ninth guru, Guru Tegh Bahadhur, gave his life defending the right of Hindus to freedom of worship at a time of forced conversion by the Mogul rulers. At the same time, the gurus taught that people of all faiths must respect fundamental human rights and the equality of all people, including full gender equality.

While I have the greatest respect for a sister faith, I also believe that Hinduism without the old-fashioned concept of caste will be infinitely stronger. Similar negative cultural clutter exists in all our different faiths. Its removal would help religions work together for a fairer society, and it is in that spirit that I support this amendment.

[Lord Mackay of Clashfern]

My Lords, I fully support this amendment because it deals with a problem which ought not to disfigure our national life. My only point is somewhat technical. I notice that in one of his quotations, the noble Lord, Lord Avebury, mentioned race, of which he said caste is a subgroup. I believe it is quite reasonable to suppose that the definition of race in the Equality Act, including ethnic considerations, will include caste. The fact that an additional power was taken to make orders in relation to caste puts that, in the context of the Equality Act, in a certain amount of doubt. However, it is quite important that we recognise that “ethnic” is a broad consideration and idea. According to the Shorter Oxford English Dictionary, which I suppose has a special authority in some parts of the House, “ethnic” means,

“relating to national and cultural origins … denoting origin by birth or descent, rather than by present nationality”.

It also has the definition of pertaining to or designating a,

“population subgroup (within a larger or dominant national or cultural group) with a common national or cultural tradition”.

In effect, that is what caste is. In the context of the 2010 Act, the fact that a separate order-making power was introduced may have been unnecessary. However, it is worth recognising, as the quotation used by the noble Lord, Lord Avebury, shows, that caste can be regarded as a subgroup of race which, of course, is a characteristic that is at present the subject of antidiscrimination provision.

It looks to me as though we have here the necessary push behind this, but I would like the Government to consider it. It may be a reason for reconsideration at Third Reading, separate from other things that have been said, but it is important for a view to be taken about this matter.

[The Lord Bishop of Hereford]

My Lords, I pay tribute to the noble and right reverend Lord, Lord Harries, and others proposing this amendment, to which I give my full support. I do not want to delay this debate too much because it is quite clear what many of your Lordships think. However, I will make three brief points. First, I go back to the theme touched on by the noble and right reverend Lord, Lord Harries, and others about the Government’s plans to address this underlying issue by way of education. We have just been reminded about dictionary definitions. Education is from “educere” to lead us out; to lead us out, surely, into greater truth and the fullness of that truth; for us to flourish as human beings; and to become the best human beings we can be. Within that, I believe, the spirit of God leads us into the fullness of that truth of all being valued in the sight of God.

Secondly, we need consistency in how we approach these issues. Yes, there should be education but not only education. As we have been reminded by the noble Lord, Lord Deben, where does that lead? If it does not lead to the possibility of those who are being educated to treat others equally, to have the law support that as well, we let them down and fail them. Surely, our law is but the right ordering of our society. As we have been reminded by the noble and right reverend Lord, Lord Harries, this issue is about the public arena.

Thirdly, and to which the noble Lord, Lord Alton, has drawn our attention, having had this debate, if we should turn away and not support this amendment, we are giving a worse signal than if we had never had the debate. We need the debate and we need it to be in the open. Having got to this point, we cannot let ourselves turn away. That would cause more harm, more damage and more discrimination. I hope very much that the Minister will accept this amendment and, if not, that it will have the support of all the Benches.

[Lord Lester of Herne Hill]

Perhaps I may follow especially what was said by the noble and learned Lord, Lord Mackay of Clashfern, with which I agree. However, first, I recall that the previous Government, led by the noble Baronesses, Lady Royall and Lady Thornton, met with a large group of Dalits, introduced by my noble friend Lord Avebury and the noble and right reverend Lord, Lord Harries of Pentregarth. As I recall, they listened to them for the best part of three or four hours and were deeply affected by what they learnt from them. It was decided to include a power in the 2010 Act precisely to deal with the problem about which they had heard and to get the necessary research, which they did, and then to deal with the problem of legal uncertainty. As I understand it, the whole reason for the power was because it was necessary to deal with the problem of legal uncertainty if the Government were satisfied that there was evidence of discrimination.

During the debates that then took place, the noble Baroness, Lady Warsi, played a conspicuous role. I was looking back to some of the things that she said. She referred to a study, Hidden Apartheid—Voice of the Community—Caste and Caste Discrimination in the UK. She said that the study,

“illustrates that there is a real and widespread problem, whereas that does not appear to come back from the Government's consultations”.—[Official Report, 11/1/10; col. 340.]

She also referred to a “serious problem”. I pay tribute to her for that.

The noble and learned Lord, Lord Mackay, rightly suggested that it is strongly arguable that the concept of race, notably of ethnic origins, might be capable of being extended to cover caste. I agree with him that that might be possible, especially when one considers the position of Jews and Sikhs. In the Jewish free school case, the Supreme Court had to deal with a dispute between orthodox Jews and Jews outside the United Synagogue. The Supreme Court interpreted the notion of ethnicity to include descent and held on the fact that a school was discriminating on the basis of descent as part of race.

Many years before, in the Sikh Mandla v Lee case—in which representation was made by an extremely able young advocate, now the noble and learned Lord, Lord Irvine of Lairg—a school refused to allow a Sikh boy to be a member of the school if he wore a turban. The House of Lords decided that the word “descent” as part of ethnic origins was capable of being construed to treat Sikhs as being protected by the Racial Discrimination Act.

We are in the position in which some 300,000 Jews—as the noble Lord, Lord Deben, indicated in his extraordinarily powerful speech—and 300,000 Sikhs in this country are protected against race discrimination as ethnic groups, but Dalits are not yet protected. It would take a case all the way to the Supreme Court to try to prevail in the way that Sikhs and Jews have done.

Noble Lords will have read in the newspapers that there was indeed a test case brought in an employment tribunal by Vijay and Amardeep Begraj. After a 36-day hearing, the judge recused herself on the application of the defendant after a visit from two West Midlands Police officers. As a result, there is no determination of their complaints of caste-based discrimination, caste-based victimisation and caste-based harassment. They ran out of money, and I cannot imagine how it would be possible for anyone in the Dalit community to be able now to bring a case that could go before a tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. It would cost hundreds of thousands of pounds for the costs of both sides.

Therefore, one of the overwhelmingly strong reasons for supporting this amendment is not, as was suggested by the noble Lord, Lord Alton, that it is declaratory. The whole point is that it is not declaratory: it would bring the Dalits within legal protection. They would at last have effective remedies.

17:30

[Lord Alton of Liverpool]

I was trying to say—and perhaps my voice was not particularly helping—that it was more that we had made a declaratory statement in the earlier amendment and I felt that it would be a negative declaratory statement if we were not to pass this amendment because of the message that it would send, not just to the 400,000 Dalits in this country but to those living in India.

[Lord Lester of Herne Hill]

I am most grateful. Contrary to the impression that I might create, I am not simply a cold-hearted lawyer: I value symbols very much indeed.

I finish with this about education and legislation. It is almost 50 years since, in 1967, in its first annual report, the Race Relations Board summarised the role of legislation in this way: First:

“A law is an unequivocal declaration of public policy”.

Secondly:

“A law gives support to those who do not wish to discriminate, but who feel compelled to do so by social pressure”.

Thirdly:

“A law gives protection and redress to minority groups”.

Fourthly:

“A law thus provides for the peaceful and orderly adjustment of grievances and the release of tensions” ,

and fifthly:

“A law reduces prejudice by discouraging the behavior in which prejudice finds expression”.

Gandhiji is no longer alive, but I have no doubt that his spirit would guide us in a vote if it is decided to divide the House.

[Lord Cormack]

My Lords, I strongly support what has been said. As my noble friend Lord Deben, with whom I do not always agree, made his powerful and convincing speech, I could not help but remember a conversation I had with my father—who loved India and travelled there often before the Second World War—in 1947, 66 years ago when India became independent. I thought of that conversation, too, when the noble Baroness, Lady Flather, was addressing us a few moments ago. My father said, “India will have its independence, and I hope that that will mean the end of the caste system”.

As a young boy of seven, I had not a clue what he was talking about. He sat me down and explained the plight of the untouchables, which had moved him many times in his visits to India. Here we are, 66 years on, and there are people not only in India but in our own land who do not have the protections for which my noble friend Lord Deben and others have argued so articulately this afternoon.

A few months ago, we had a fine debate introduced by my noble friend Lord Popat, who is sitting on the Front Bench now. It was to commemorate the 40th anniversary of the admission of the Uganda Asians. From all sides of the House, people spoke with passion, conviction and affection for the way in which that community adapted and adopted itself and enriched us all in the process. It was right that we should pay our tributes. But is it not sad that there are still 400,000 in this country who do not enjoy the full protection of the law in the way in which the Ugandan Asians rightly do?

I very much hope this afternoon that the House will not need to divide. I hope that it will carry this amendment by acclamation. If there is any chance at all of the Government not being able to accept the amendment, I hope—and here I repeat what I said in an earlier debate and echo what the noble Lord, Lord Alton, said—that at the very least, my noble friend the Minister will think again and come back at Third Reading. If she cannot do that and does not feel that she can discuss with senior colleagues in the Government the need to do that, the House has a duty incumbent on it to strike a blow—brief but effective.

If we wanted to be convinced of the need for that, we need only reflect on the words of the noble Lord, Lord Lester, a few moments ago when he talked about the expense of going to law. Do we wish to create a situation where the only way of seeking redress of the basic grievance of not being treated equal is to go to law? No, we do not. If the amendment cannot be accepted and if there cannot be a promise to come back at Third Reading, I hope that it will be carried.

[Baroness Thornton]

My Lords, it was with enormous pleasure and humility that I put my name to this amendment on behalf of these Benches. It is true what the noble Lord, Lord Lester said. In 2009-10, I attended a meeting of hundreds of Dalits and their organisations and found myself completely convinced that there was a gap in the law. Our equality legislation did not cater for this group and it was something that we needed to resolve. That is all that is before us today.

I thank the movers of the amendment and I particularly want to thank the noble Lord, Lord Deben, because I thought his speech was extraordinary. All we want and all that we need to do is to add “caste” to,

“colour, nationality or ethnic or national origins”,

under the race characteristic of the equality legislation. It is not actually a very big thing to do, but it is a very important thing that we have to do today.

[Lord Sheikh]

My Lords, I am grateful for the opportunity to contribute to the debate and thankful to the Government for introducing this Bill, which will support British businesses in cutting unnecessary costs and red tape, boost consumer confidence and help to create more jobs.

I wanted to speak briefly on the amendment of the noble and right reverend Lord, Lord Harries, relating to the inclusion of caste when considering cases of discrimination. This is not a new debate; indeed, when the Equality Act was published in 2010, a specific provision was included to allow for caste to be added as an aspect of race at a later date. Later that year, the National Institute of Economic and Social Research undertook an extensive government-commissioned study into the prevalence and severity of caste discrimination in the United Kingdom and concluded that it does in fact occur in many of the areas covered by the Equality Act, such as education and the workplace. That led me to conclude that government action is indeed required as a matter of some urgency.

As a man with Indian ancestry, I am all too aware of the deep-rooted prejudice and unfair treatment that results from allowing the caste-based system to persevere. The Minister may be aware of the religious concept of untouchability, whereby certain individuals are declared untouchables due to their perceived association with impurity and pollution. As a result, they are ostracised and isolated from the rest of society in order to protect and preserve the quality of the majority.

In particular, across much of south Asia, the Dalit community has suffered greatly from this deep, ingrained form of discrimination. Dalits are a community considered so lowly in the social hierarchy that in some circles they are in fact excluded from the caste system altogether and completely segregated by social customs.

Historically, in countries such as India, Dalits have also been physically separated from the rest of society, housed outside the main villages and entitled to perform only the most menial of jobs. This horrendous social mentality still prevails in some rural communities, although thankfully it is becoming less common. Today, the Indian constitution outlaws discrimination based on caste and provides for the reservation of seats in the House of the People and the states’ legislative assemblies for those who have been historically disadvantaged due to the caste system. There are also programmes to promote and provide educational and employment opportunities for those such as Dalits. Many people in this country will be completely unaware of the existence of such a caste system and its history in suppressing minorities here. This is why it is particularly important that we acknowledge the potential extent of the problem in the United Kingdom.

I was instinctively drawn to support this amendment. Following further reading and a highly reassuring discussion with the Minister this morning, I am now very much aware of how seriously the Government are taking this matter. They have been very clear that nobody should suffer prejudice because of their caste, and as such have developed the Talk for a Change programme to work with the communities affected by this discrimination. As with so many of the most deep-rooted cultural ills, education and awareness is the key to prevention and this is exactly the approach this programme will take. I also appreciate that there will be a political focus on the Hindu and Sikh communities where the problem is most prevalent. Such assertive action is extremely welcome and is necessary both in the name of protecting vulnerable individuals and in maintaining our reputation as a country that embraces progressive and tolerant attitudes.

The Government have also been clear that they have no plans to remove the provision contained within the Equality Act which allows for caste to be included at a later date. This again reassures me that they are maintaining a flexible approach to tackling this problem and were we to enforce the type of legislation called for in this amendment we would simply be pushing against an open door.

We must realise that, as a nation which has so proudly and successfully championed the fusion of a diverse range of minority communities with modern-day Britain, we have inevitable responsibilities. These responsibilities should be seen as challenges to relish; ways in which we can assist our new communities and help them to integrate better into what many see as the mainstream of British life.

Our Prime Minister has made the point that Britain is open for business, and I believe that furthering our commitment to fairness and equality in our boardrooms, offices and factories can only serve to make us an even more attractive nation to do business with. I believe that the Government share this sentiment and I look forward to following the progress of the Talk for a Change programme.

If a Division is called, I shall certainly vote not-content.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have contributed to this very important debate. Let me start by being absolutely clear: the Government recognise that there is some evidence of caste prejudice and discrimination taking place in the United Kingdom. Such behaviour is wrong; no one should suffer prejudice or discrimination, whether because of caste or any personal characteristic, and it should not be condoned whether or not it is prohibited by legislation.

Before I go any further, I should like to pay tribute to the work of those who have campaigned so hard on behalf of victims of caste prejudice and discrimination, particularly the noble Lord, Lord Avebury, and the noble and right reverend Lord, Lord Harries of Pentregarth. I think they underestimate what they have achieved through their efforts over the last few years. Their commitment has already achieved a great deal in highlighting the problem and in ensuring consideration of this issue.

As noble Lords closely involved in this campaign know, the Government were already reviewing the NIESR report that has been referred to before my noble friend Lord Avebury tabled his amendment to this Bill at the end of last year. However, a decision by the Government as to what action they would take had not emerged at that stage. During debate in Committee, I undertook that the Government would reach a decision which would be announced before today’s Report. In the light of the strong arguments in Committee, I also undertook to ask the relevant departmental Minister, my honourable friend Helen Grant, to meet representatives from all the major pro-legislation caste organisations. That meeting took place earlier in February and my noble friends Lord Avebury and Lady Northover and the noble Baroness, Lady Thornton, were all able to attend. Though I was not able to be present myself because I was required on other business in this House, I met Helen Grant beforehand to relay personally the details of our previous debate. She has since given me a comprehensive read-out of the discussions.

17:45

Be under no doubt, the Minister listened carefully and has reflected thoughtfully since that meeting. For her and for me, the question is not and never has been, “Should we act to do something about caste prejudice and discrimination?”, but rather, “What is the best course of action when all the evidence is taken into account?”. My noble friend Lord Lester referred to some statements that my noble friend Lady Warsi made when we were in opposition about there being a serious problem of caste prejudice. She was right then and she is right now; our position on that has not changed.

There is a clear demand for legislation; that has been put forward without any doubt today. That demand is from those who are affected as well as from those who are speaking for them today. But new legislation is always a big step. Before taking it, we need to be satisfied that it is the most appropriate and effective way of tackling the specific problem. My noble friend Lord Deben, as other noble Lords have rightly acknowledged, made an incredibly powerful speech in this debate. One of the things he said was that no one should suffer discrimination on the grounds of something that they cannot help. He was referring to castes and I agree with him. However, there are other people who suffer prejudice in this country because of their class, their background or their place of birth but we have no legislation on these matters and we deal with them through other approaches.

[Lord Deben]

I understand that, but none of those things is fixed in the way in which caste is fixed. Those are things which can be changed—sometimes they are just changed by speaking differently. You cannot change your caste, and that is why it is an exact parallel with race and may indeed be included within race. Surely it is not acceptable to say that there is anything else like caste.

[Baroness Stowell of Beeston]

As I continue laying out the Government’s response, I will answer more directly the points that my noble friend has made. I want to make it plain that there are other forms of prejudice from which people in this country suffer to a great extent for which no clear, direct legislation exists to prevent it happening.

The noble and right reverend Lord, Lord Harries of Pentregarth, provided some rather shocking evidence and stories of discrimination outside the UK, as did other noble Lords. The Government have to legislate to tackle what happens in this country; that is what we—what all Governments—must ensure that we do. The noble Lord, Lord Alton, and the noble Baroness, Lady Flather, talked about the huge number of crimes committed against Dalits in India. We have existing criminal law here in Great Britain for dealing with those kinds of assaults and other crimes if they take place in this country.

At this point, let me make it clear that we remain willing to consider whether there may be a case for legislating specifically in regard to caste discrimination, and hence our willingness to meet representatives of the key groups. I will return in a moment to the circumstances that would lead us to such a decision, and why we remain unconvinced that legislation is the best answer. It is clear from the NIESR report, which is the most robust study available so far, that the majority of incidents of caste-related prejudice or abuse would not be covered by equality legislation. Our assessment is that the great majority of cases in the report are either in areas outside the legislation—such as in relation to volunteering, which is not covered by discrimination law—or would already be subject to redress through a range of measures from claims for constructive dismissal to criminal prosecution. That said, we are clear that no one should suffer prejudice because of caste. Such prejudice should not be condoned and it should never be ignored, and that is why I am pleased that the Government have announced that they are taking clear action to tackle caste prejudice and discrimination through an education initiative. I thank my noble friend Lord Sheikh for his support for this initiative, and I must say that I was rather surprised that the noble and right reverend Lord, Lord Harries, dismissed it as being patronising and interfering. Even if a new law on caste discrimination was to be introduced, without education it would not address the underlying causes.

[Lord Avebury]

Did my noble friend note the quotation I gave from the NIESR report which talked about the educational effect of legislation? The fact is that because employers would have to discharge their responsibilities, they would educate their workforces and thus the whole of society.

[Baroness Flather]

Who is going to educate whom? We have put down so many things under education that I should think they could fill a whole blackboard. Without legislation, I do not understand who will give this education and who will be educated.

[Baroness Stowell of Beeston]

I hope that, as I continue my remarks, I will be able to answer the points made by my noble friend and the noble Baroness. My noble friend Lord Avebury talked about business only needing to familiarise itself with caste legislation when a case of discrimination occurs. I would argue that that is not the case. Employers and service providers have to familiarise themselves with the law in order to avoid being faced with claims for discrimination. The noble and right reverend Lord, Lord Harries, asked about the cost of the education initiative. I can inform him that the estimated cost is around £20,000. I should also say that I thought that the contribution made by the noble Lord, Lord Singh, on the history behind caste was very illustrative because it demonstrated the point I have just made in response to my noble friend Lord Avebury about the need, if we were to introduce a law, to educate business in just how complex an issue this is and therefore how much education will be necessary.

The joint initiative between the Department for Communities and Local Government and the Government Equalities Office has already appointed a body called Talk for a Change to take this work forward in partnership with any organisation that wishes to become involved in finding practical, community-based solutions to the problems and harm that caste-based prejudice can cause. Over the next few months, the programme will see Talk for a Change running a series of regional workshops that will engage with individuals and organisations from local communities to explore the nature and sensitivities of the caste system and the emotional harm that caste prejudice and discrimination can cause. In response to a point made by my noble friend Lord Deben, I say that the workshops will also be used to raise awareness within those communities of the channels of redress that are already open to those who feel themselves to have been victims of caste prejudice, discrimination or harassment. The outcomes from these events will be used to provide material that can be made available to local authorities, schools, colleges, employers, the police and any others who may come into contact with caste-related issues. The details of how those who wish to participate in this project can get involved will be available shortly on the Talk for a Change website, and we will also ensure that these projects are widely advertised.

We believe that this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste that are not already susceptible to the criminal law or other remedies such as employment law or informal grievance procedures. However, that is not all we are doing. As has already been referred to, the Equality and Human Rights Commission was mentioned several times during our debate in Committee as an important player in this issue. We have been in discussions with the commission about caste discrimination, and both the Government Equalities Office and the commission have agreed that it would be useful to examine the evidence from existing studies and the extent to which different approaches might address the problem. This work will not duplicate the previous work undertaken in the area, such as the NIESR report.

In response to the noble and right reverend Lord, Lord Harries, and my noble friend Lord Avebury, who I think used the term Groundhog Day when commenting on this issue, let me make it absolutely clear how this is going to be different. NIESR carried out primary research to determine whether caste prejudice and discrimination exists in Great Britain. That research included discussions with a range of organisations and interviews with individuals who have claimed to be the victims of such behaviour. The commission will use the evidence that is currently available as part of its consideration of the nature of caste prejudice and harassment and the extent to which this problem is likely to be addressed by legislative or other solutions. The commission intends to publish its findings later this year, which we will of course consider carefully. My noble friend Lord Avebury asked whether a budget had been set aside for the commission to look at this issue. The commission has not requested a budget for this work because, as we debated at length in the previous debate, it is an independent body that takes its own decisions about its workload and spending within its own overall budget.

My noble and learned friend Lord Mackay of Clashfern raised an important legal matter, and he was supported in doing so by my noble friend Lord Lester. He said that caste is already potentially a subset of race and that perhaps the current existence of the separate power on caste in the Equality Act 2006 detracts from that. It goes without saying that my noble and learned friend knows far more about the law than I could ever begin to know myself, and whenever he intervenes to make a point, I consider it carefully and with great seriousness. However, we are not aware of any case law directly on this point, although I note that my noble friend Lord Lester seemed to suggest that some exists. What I would like to suggest is that, when the commission undertakes its study, this is an area on which it might properly reflect as part of its work. This is precisely the kind of thing that the commission should consider in the work that it is about to do.

[Lord Lester of Herne Hill]

Is the Minister aware that the UN Committee on the Elimination of Racial Discrimination has called on the United Kingdom to legislate in this area?

[Baroness Stowell of Beeston]

My noble friend is familiar with the detail in this area. If that is so, I am not in a position to suggest that he is wrong. However, we do not believe that it is necessary to introduce legislation at this time.

The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges which makes it clear that legislation would help to achieve the aim that we all share. As I have already made clear, we will consider the outcome of the commission’s study when it reports later this year.

18:00

From the limited evidence of caste prejudice already available, we believe that there is much to be gained through a programme of education, and that is something that we can and will get on with immediately. Those who suffer this prejudice have strong support from all sides of this House—that has been made evident today. However, let me also make clear that the people who suffer from this prejudice also have support from Ministers who are currently in government; most particularly, my honourable friend Helen Grant and my noble friend Lady Warsi, who will take a very active role in monitoring the effect of this educational programme and will most definitely take quite seriously the results of the work that the commission has said that it will do. I cannot accept this amendment for all the reasons that I have given, and I hope that, in view of the comprehensive way in which I have responded today, it is possible for the noble and right reverend Lord to consider withdrawing his amendment.

[Lord Harries of Pentregarth]

First, I thank very much all those who have spoken in support of this amendment for their deeply felt speeches. I also thank the Minister for the serious consideration which she has given to this, and for her obviously sincere commitment to the elimination of caste discrimination. I also thank the Minister in the other place, Helen Grant; the Dalit organisations found the meeting with her very helpful.

However, there is a clear division of opinion in this House between those who believe very passionately that it is essential to have a clear law in place at this stage, and those, like the noble Lord, Lord Sheikh, who are with the Government in believing that what is needed is an educational programme. All I ask the noble Lord is whether he would have taken that view when race relations legislation was first being introduced. I suspect he would not have; he would have argued for the importance of a clear law.

The Minister mentioned rightly that a number of the more horrible cases mentioned in our speeches concerned what is happening in India, rather than here. That is true, and this issue needs to be seen against that wider background. None the less, I myself gave a very clear example of employment discrimination in this country, and we can provide the Minister with a whole range of cases in this country, as the report sets out.

The Minister suggested that many of the cases mentioned in that study would not be covered by legislation. That is indeed true. However, a number clearly would, and that is surely the key point. At the moment, people have no legal address, and it is absolutely fundamental to all aspects of the law in this country that people have such address where they feel that they are being discriminated against. While I in no way doubt the sincerity of the Minister and the Government on this issue, there is a clear division of opinion in this House about the necessity of a clear law at this stage. I therefore wish to test the opinion of the House.

18:03

Division 2

Ayes: 256

---

Labour: 156
Crossbench: 57
Liberal Democrat: 21
Conservative: 9
Independent: 5
Democratic Unionist Party: 1
Bishops: 1

Noes: 153

---

Conservative: 113
Liberal Democrat: 33
Crossbench: 3
Ulster Unionist Party: 1
Independent: 1

18:10

Clause 58 : Equality Act 2010: third party harassment of employees and applicants

Amendment 74 not moved.

Clause 59 : Equality Act 2010: obtaining information for proceedings

Amendment 75

Moved by

[Lord Lester of Herne Hill]

75: Clause 59, leave out Clause 59

[Lord Lester of Herne Hill]

My Lords, I was unable to take part in the debate on this issue on 14 January in Committee because of ill-health. I am grateful to those who spoke at that time. We are dealing here with a procedure invented in 1974, one that has worked very well and is designed to help people without legal aid to know whether they have a good case for discrimination. This procedure concerns not only ethnic minorities, religious minorities, women, the disabled and the elderly, but everybody protected by the Equality Act 2010.

The repeal of the statutory procedure that enables would-be claimants to use a standard form to find out whether they have a good case would greatly diminish and impair the ability of potential claimants to have effective access to justice in pursuing claims of alleged unlawful discrimination. It would be regressive and undermine the practical benefits of the Equality Act for women and girls, ethnic and religious minorities, the disabled, the elderly, and gay and lesbian men and women. I therefore hope that the Minister will be able to accept this amendment so that the procedure may be retained.

The questionnaire procedure was introduced into the Sex Discrimination Act 1975 and the Race Relations Act 1976 when I was special adviser to Home Secretary Roy Jenkins. The White Paper, Racial Discrimination, published in September 1975 explained in paragraph 85 that:

“Help will be given to a person who considers that he may have been discriminated against unlawfully to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner … In addition to helping the aggrieved person to ascertain the nature of the respondent’s case at an early stage by means of a simple, inexpensive procedure, this provision will also enable complaints which are groundless or based on misunderstandings to be resolved without recourse to legal proceedings”.

The position with discrimination law is that the burden of proof remains, as it has always done, on the claimant to make out a prima facie case before the burden shifts to the employer or service provider. The Explanatory Notes to Section 136 of the Equality Act 2010 explain that,

“the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”.

That has always been the position and it involves a fair sharing of the burden of proof. As Karon Monaghan QC notes in the leading textbook on equality law in paragraph 14.18:

“The courts have long acknowledged that proving direct discrimination ... is peculiarly problematic. This is reflected in such statistical data as exists, which indicates that discrimination, particularly race discrimination, cases have lower prospects of success than any other comparable claims”.

She reviewed the case law and concluded:

“The outcome of a case will ... usually depend on the inferences which it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with the questionnaire provisions”.

Abolishing the questionnaire procedure would deprive the tribunal or court of the power to draw such inferences because of the failure by the employer or other respondent to answer the questions or because they did so in an equivocal and shifty way. That would be unfair and unjust. The Minister accepted in Grand Committee that the questionnaire form is “simple and straightforward” but she cited fears expressed by the Opposition in 1975 that the procedure might be abused. That was before the forms were published and used and there is no evidence of which I am aware that the procedure has been abused or indeed criticised by any court, tribunal, legal practitioner or academic during the 35 years it has operated. I invite my noble friend the Minister to indicate whether she agrees, or has even a scintilla of evidence—as opposed to assertion—that any court, tribunal, legal practitioner or academic during the past 35 years has ever suggested that the procedure is abusive. In Grand Committee the Minister referred to the procedure as not being replicated in other areas of employment law. That is because there are special difficulties in proving discrimination cases, as the courts have repeatedly said.

The procedure has proved to be of real practical benefit for potential claimants and respondents and was extended by successive Governments and Parliaments to the other forms of unlawful discrimination in the employment, education, goods and services, and public service provision fields. It applies to alleged discrimination because of religion or belief, sexual orientation, disability, and age, and in relation to equal pay without sex discrimination. It was included in Section 138 of the 2010 Act without controversy or any opposition in either House. It does not require the complainant to use the forms prescribed by the Minister, so there is no micromanagement here.

Complaints of alleged discrimination—whether direct or indirect—are, as I have said, very hard to prove and most of the relevant information is in the possession of the respondent rather than the claimant. For example, in a direct discrimination case the claimant has to choose a comparator to prove less favourable treatment on a ground forbidden by the Act. The burden of proof is on the complainant. Only the respondent is in possession of the relevant facts about whether the comparison is appropriate and whether the facts show less favourable treatment, and, if so, the reason for this. Similarly, in an indirect discrimination case, the claimant has to prove disproportionate adverse impact on forbidden grounds. Again, only the respondent has the facts, including statistical or other material and whether there is an objective justification for the discriminatory barrier.

It is essential that the potential respondent is encouraged to disclose the essential facts at an early stage to help the potential claimant to know whether to proceed and also to encourage conciliation and settlements by encouraging the respondent to take the matter seriously pre-litigation. If the procedure were abused, the employer or service provider could refuse to reply and the tribunal would uphold their position because of the abusive approach of the claimant.

These considerations were not brought out in the Government’s consultation paper, which stated that the Government had seen no evidence that the question and answer procedure reduces litigation. As a result of the consultation, however, evidence did come to light, notably from the Equality and Human Rights Commission, about the practical utility of the procedure. The commission’s position paper was published in August 2012. Its evidence is particularly important. Parliament has made the commission responsible for monitoring the effectiveness of the legislation and the likely effect of a proposed change of law. That is what Parliament has decided. The commission is able to draw on 35 years of experience by the equality agencies it has replaced.

The commission has explained that the procedure has led to cases being resolved or not being pursued and that repealing Section 138 would limit the evidence on which a claimant can rely in proving their case. The commission has found the procedure useful in assessing the strength of a case and has made decisions not to assist a case under Section 28 based on the response to questionnaires. By making it harder for the claimant to seek an effective remedy for discrimination there is an increased risk of a legal challenge to the repeal of Section 138. The commission also rightly points out that claimants will still have the right to pose questions pre-claim but that it is preferable to do so on the basis of the questionnaire.

The Government’s response does not address any of the issues raised by supporters of the procedure—some 83% of respondents—including not only the EHRC, trade unions and the equality NGOs but also the judiciary. The Government dismiss the evidence as not “quantifiable” and state that the question and answer procedure,

“encourages undesirable micro-management of the process by government, including prescribing the nature of the forms to be used, and the time limits involved”.

It is difficult to understand how the procedure can be described as micromanagement, still less as undesirable micromanagement. The Government consider that the more effective approach is to leave,

“businesses free to decide how and whether they respond to enquiries of this sort, with any attendant balance of risk that may be involved”.

I cannot agree. With the existing questionnaires, the tribunal or court can draw a negative inference against an employer who fails to respond to the questionnaire. That is an important incentive for employers, trade unions and services providers to respond. Without that incentive the help given under the Equality Act and its predecessor Acts is taken away and the claimant falls back on the disclosure powers of the courts and tribunals. These are extensive and disclosure orders are far more time consuming than filling out the existing questionnaires.

In its excellent briefing, the Equality and Diversity Forum expressed concern about the proposal to abolish the questionnaire procedure because it saves money by deterring ill-founded litigation, enables the early resolution of disputes, clarifies the issues in contention and facilitates access to justice. Some 83% of consultees oppose the repeal of this provision. Indeed—your Lordships may think this is a killer point—the president and the regional employment judges of the employment tribunals have described it as a retrograde step. There is no credible evidence that I know of that the procedure is a burden on business. I agree and I beg to move.

18:30

[Lord Ouseley]

My Lords, I support this amendment in the name of the noble Lord, Lord Lester of Herne Hill. I do so on the basis of comments that I made in Committee, which I will try not to repeat while trying to contextualise this Bill and where the equality aspects sit in it. Clearly, much of what the noble Lord has already said explains the difficulty that victims of discrimination have in proving discrimination, with the whip hand being with the employer and with the information often being inaccessible.

The Bill itself has an underlying theme. I feel that it is to allow employers to hire and fire without any fear, weakening employees’ rights and reducing the support and representation available to victims of discrimination in the workplace, while making the EHRC weaker. It transfers many of its resources and functions to the GEO, where the Government will have greater control. The Government have cut the previous grants programme and diminished the helpline. They are converting the EHRC into some form of strategic think-tank, which is unrelated to the reality and everyday struggle of disadvantaged and disaffected communities across the country. It is among those groups that we find many of the less powerful victims of unlawful discrimination. In addition, there are closures of advice and law centres, with legal aid being denied and costs now being associated with employment tribunal cases. That is the severe context in which we have to look at the attempt to withdraw the questionnaire procedure.

This is being done largely on the basis, as argued by the Government, that it is a burden on employers to have to respond to questions being asked by employees about their treatment. Employees have to get that information to determine whether they have a basis on which to go forward with a case of unlawful discrimination. Without that information, they literally have no basis for doing so. The basis of my support for this amendment is my experience of working with and against employers who want to get rid of their employees. Many employers clearly support the reform put forward here—getting rid of the questionnaire—because they do not want to be accountable for their actions or to respond to questionnaires in which they have to provide explanations for their actions. They regard these questionnaires, as the government side have argued in taking this forward, as a nuisance.

Employers also find some of the questions being asked challenging. That is not simply because they are seen and interpreted as a fishing exercise but because unless those questions are asked, employees who have a feeling that they have been discriminated against or an awareness that they have been treated unfairly, and probably unlawfully, are unable to carry forward their grievance. They cannot get redress without assistance, which I have already mentioned is vanishing, and certainly without the information that they need. Some of the questions asked, which may bring forward information or are sometimes not answered, are exactly what is required to help employees understand the nature of the discrimination they have suffered or understand the explanation for why they have been treated in certain ways that render it impossible for them to succeed in a case before a tribunal.

As the noble Lord, Lord Lester, pointed out, 83% of those who responded to the consultation opposed the repeal of the questionnaires. We have had submitted to us the EHRC’s position which recognises the usefulness and importance of retaining questionnaires. Indeed, we have had a submission from the Discrimination Law Association, which provided examples of the usefulness of the questionnaires in helping both employees and employers. Practitioners right across the country have contributed to that. I hope that the Minister will recognise that the case has not been made, with evidence, of how questionnaires are a burden for employers, other than that they see them as a nuisance and an irritant. In fact, in the name of justice, equality and fairness, and to enable the existing legislation to be undertaken and enforced effectively, as it has to be, the usefulness of the questionnaires should be retained for that purpose.

[Baroness Turner of Camden]

My Lords, I have no desire to add to the two very detailed contributions that have just been made to this debate. However, I fully support the amendment. I am opposed to the abolition of the questionnaire procedure. I cannot understand why the Government are proceeding down this path. As has already been indicated, the questionnaire procedure saves money by deterring ill founded litigation. Most of the consultees, including the British Chambers of Commerce, were opposed to it while surveys have shown that none of the businesses questioned raised concerns about the questionnaire procedure. Quite honestly, there is no evidence at all that the questionnaire procedure is a burden on business. As far as the trade union movement is concerned, the TUC is totally opposed to the abolition of the questionnaire. I hope that the Government, having listened to the two previous noble Lords, will agree that this is not the path to go down and will not proceed with the abolition.

[Baroness Thornton]

My Lords, I was very happy to put my name to this amendment from the noble Lord, Lord Lester. He spoke with great passion and authority about this issue at Second Reading and has done so again to explain why this amendment is so important. In terms of practical equalities on an everyday basis, this is probably the most important amendment we are going to discuss today because it is about how ordinary people can start to challenge whether they have been discriminated against.

As the noble Lord, Lord Lester, and my noble friend Lady Turner have just said, there is no evidence that this procedure is being used as a fishing exercise. Case law makes clear that businesses and other respondents are not required to answer questions which are disproportionate and that a poor response would not automatically lead to a finding of discrimination. Indeed, the Government’s impact assessment fails to provide any empirical support for removing this so-called regulatory burden on businesses. The questionnaire procedure facilitates access to justice. It helps both parties to assess where a claim lies and enables them to reach an early settlement where appropriate. It is therefore crucial that the Government should not repeal Section 138 of the Equality Act 2010.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.

Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.

Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”

At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.

My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.

When we debated this in Committee, some noble Lords doubted my contention that,

“not one single employer or business organisation told us that they saw value in the questionnaires”.—[Official Report, 14/1/13; col. GC 136.]

Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.

Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—

18:44

[Lord Lester of Herne Hill]

I would like clarification, although I am listening very carefully. Is it contemplated that the conciliation procedure will enable a claimant to do something like serve such a questionnaire in order to try to understand whether they have a good case or not, or is this procedure to be abolished if the Government have their way?

[Baroness Stowell of Beeston]

To be absolutely clear, this is not about abolishing the opportunity for anybody to submit questions to an employer to gather information. All we are removing is the statutory requirement for that employer to have to respond to those questions within a time limit, and, if they were not to do so, providing for their non-response to be considered by the tribunal service.

I will return to what I was saying. If 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 individual will then still be able to seek information from the employer or service provider, before making any decision on whether to take their claim to the tribunal. Individuals will still be free to seek information from an employer or service provider about alleged discriminatory conduct without the statutory process. Information can be sought informally, in writing or orally.

To help this process, this informal approach will be set out in ACAS-approved guidance. This is being developed with the input of interested parties, including the Equality and Diversity Forum, the Equality and Human Rights Commission, and the CBI. Since we last debated this issue, ACAS has developed draft guidance for consideration by the group of interested parties. The guidance will include advice on how to seek pre-claim information in the employment as well as the goods and services context.

My noble friend Lord Lester referred to the fact that without statutory procedure employers will not help claimants by providing information. My response is that we are removing that statutory requirement for them to respond. When that ceases to exist, courts and tribunals may still take into account a refusal to answer questions or their provision of answers that look evasive when deciding whether a case of discrimination has been made out. The fact that there is no statutory process does not remove the risk to an employer or service provider of deciding not to respond to a claimant; it only removes the unnecessary and prescriptive process around that.

In conclusion I remind noble Lords of what I said in Committee, that we are now in a different climate to 40 years ago when this legislation was introduced. Businesses are more concerned with upholding their reputations and the damage reputational risk may have on their position in their market. There is a greater trend towards transparency around information held by business. Clearly that is progress and something that we support.

I hope that noble Lords can agree that the statutory process is no longer the right approach and that our alternative arrangements will continue to enable the kind of pre-claim dialogue that business and the Government are fully committed to supporting, with a lighter-touch process which benefits all equally. I hope that in responding I have given my noble friend at least some assurance that might lead him to withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful to the Minister and to others who have taken part in the debate. I wish that there had been some assurance that I could rely upon, because I very much hoped that it would not be necessary to test the opinion of the House. However, as the noble Baroness, Lady Thornton, said, this is probably—in fact it is—the most important amendment that the House is considering, because it seeks to help the vulnerable, who are more than half the population. If you add together women, elderly people, the disabled, black people, brown people, religious minorities, and the gay and lesbian community, it comes to more than half the population. Therefore, to take away a simple procedure that has worked well in the estimation of all the judges and experts whom I have ever known—and I can claim a bit of expertise, since I have been arguing cases in this area for about 30 years, God help me, and perhaps I have a little more practical experience than some others who are advising the Government—will make it very hard to bring a discrimination claim.

It is all very well to say, “Oh well, you don’t need the statutory thing—you can just go and write a letter”. To write a letter that will lead to any kind of result probably means going to a solicitor or a trade union representative, if you are lucky enough to have one in the real world. In the real world, without this procedure, and without legal aid for employment tribunals, the applicant will bring cases that are misconceived, the conciliation process will not work well because of a lack of information, and the whole situation will be worse for victims. I do not know whether the Conservative part of the coalition wishes to go into the next election with credit for having dismantled one piece of valuable assistance to claimants. If it does, so be it. That, however, would be foolish. I speak only for the Liberal Democrats, but I do not believe that the Conservative part of the Government wishes to undo the valuable work done by previous Conservative Governments over the past 30 or 40 years in supporting this measure and others like it.

We put this on the statute book only two years ago in the 2010 Act, with all-party support. What has changed since then? The Red Tape Challenge. The original notion of that was to dismantle the whole of the equality legislation, and this is one part that has survived. It is foolish of the Government to continue to do this, and therefore I must reluctantly beg leave to test the opinion of the House.

18:52

Division 3

Ayes: 167

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Labour: 128
Crossbench: 22
Liberal Democrat: 5
Independent: 5

Noes: 179

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Conservative: 119
Liberal Democrat: 45
Crossbench: 10
Democratic Unionist Party: 1
Independent: 1
Ulster Unionist Party: 1

18:59

Amendment 76

Moved by

[Baroness Thornton]

76: After Clause 59, insert the following new Clause—
“Equality Act 2010: Equality Impact Assessment
(1) The Equality Act 2010 is amended as follows.
(2) In section 149 (public sector equality duty), after subsection (6) insert—
“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—
(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section;(b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b); (d) ensuring public access to information and services which it provides; and(e) training staff in connection with the duties imposed by this section.””

[Baroness Thornton]

My Lords, Amendment 76 concerns equality impact assessments and would reinstate statutory requirements to undertake them as part of the public sector equality duty. An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. While equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities. They are described by the authorities that use them as,

“a positive force for the delivery of real equality”.

Moreover, case law suggests that these assessments provide robust evidence documenting how decisions were reached. Indeed, case law has confirmed that to have due regard to equality, a public authority needs to gather sufficient information about the impact on equality, give such information proper consideration at a formative stage of decision-making and consider whether any negative impact can be eliminated, mitigated or justified. Authorities are also advised to have some kind of audit trail to show that the actions they took comply with the duty. Therefore, while it is true that the courts have never held that there is a requirement to complete a written equality impact assessment or that having an equality impact assessment itself is sufficient to show compliance with a duty—especially if it has been completed with a purely tick-box or form-filling mentality—the main components of a good-quality, substantive equality impact assessment process are what the courts have held to be necessary in order to have due regard to equality.

It does not help to ensure public authorities’ compliance with their duty to have the Prime Minister and other government Ministers simply dismissing equality impact assessments as wasteful, bureaucratic and unnecessary exercises. Rather than calling time on equality impact assessments, as the Prime Minister did at the CBI conference in November 2012, we believe that these vital assessments should be enshrined in legislation. We therefore call for an additional amendment to be made to the Enterprise and Regulatory Reform Bill that would require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.

This becomes even more important when, days after the announcement of a review of the public sector equality duty by the Secretary of State, Maria Miller, the Prime Minister announced that public sector organisations will no longer be required to undertake equality impact assessments as a means of fulfilling their obligations outlined in the public sector equality duty. Instead, these important assessments have been dismissed as unnecessary.

Repeated government announcements about equality law being burdensome red tape, the declaration of the Prime Minister at the CBI conference, and the dismissal of equality monitoring by the Communities Secretary Eric Pickles as unnecessary, intrusive and a waste of taxpayers’ money, fuel our concerns about the removal of these assessments. Indeed, I was reflecting that it would be nice if this Government actually made some positive announcements about equality impact assessments and how they are necessary to judge the impact of how public money is spent and used. Just saying, as the Prime Minister did, that,

“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff … so I can tell you today, we are calling time on equality impact assessments”,

seems to me to be a somewhat facile assessment of what is a useful public sector tool.

It is notable that the review of the public sector equality duty comes after the Government were criticised by the EHRC for failing to abide by the requirements within it. Furthermore, despite its membership including four Conservatives, not one Labour politician has been appointed to the steering committee that is reviewing this. Will the Minister tell us when the steering group looking at the public sector equality duty is due to report? My understanding is that it has been further delayed and that it will not now report until the summer. How is the steering group conducting its inquiry and who is it inviting to talk to it about the public sector equality duty?

Will the Minister also comment on a recent blog for Liberal Democrat Voice by the BIS and Equality Minister Jo Swinson? She seemed to imply that the duty has actually held policymakers back from properly considering equality. She said:

“As Liberal Democrats, we do not think equalities should be about ticking boxes and regulatory hoops—it’s too important to be relegated to an administrative duty. Advancing LGBT, gender, disability and race equality will only be achieved by putting equalities at the heart of every department”.

She is right about that, but you also need to see the effects of the policies you are pursuing.

The Minister needs to address two issues. First, if you do not have an equality impact assessment, how will you assess the effect of the work of public authorities? Secondly, if the body that is reviewing the public sector equality duty reports back that it does not think it is necessary, what will the Government do with that information? Are we going to find ourselves at the end of the summer in a situation in which the Government completely stop looking at the impact of any of their policies, spending commitments and decisions on factors such as age or gender, or on any of the different groups, such as LGBT people, covered by equality legislation? I am at a loss to know what direction the Government think they are taking with this so-called regulatory reform. I beg to move.

[Baroness Hussein-Ece]

My Lords, I, too, support this amendment, to which I have added my name, as it seems to me there is an awful lot of misinformation regarding the benefits of having an equality impact assessment as part of the public sector equality duty. The noble Baroness has just mentioned tick-box exercises and bureaucracy, and described how this provision can be seen as a burden. However, it is an important tool and has been successfully used to assess the impact of public services and of government policy on vulnerable people. For many decades this was not the case. I cite my experience of working in a health authority before the public sector equality duty came into force, when it was very much up to the relevant health authority to assess whether different sections of the community or different groups received the same level of service, whether they could access that service and, indeed, whether the service was even appropriate. The public sector equality duty has gone some way to ensuring that vulnerable people, who are not always able to articulate the fact that they are not accessing a service or not benefiting from public services, are catered for and is an important way of ensuring that services are tailored to the local community. As I say, it has achieved some success.

I am not going to defend in your Lordships’ House every aspect of the way that this provision has been implemented. Of course, there is always room for improvement and greater accountability, and the amendment tries to address that. However, we must ensure that equality and the right of access to services is open to all, regardless of who they are or their background. Concerns have been raised about the way in which the steering group that has been mentioned has been established to review this issue. There does not seem to be a lot of transparency in the way that the review will conducted. There is also a lot of concern about the independence of the group given that everybody on it seems to be from a political party. I know that there is somebody from the Liberal Democrats on it but I have had no contact with that person. I would like to know how the group will take evidence and evaluate whether equality impact assessments should be changed or, indeed, removed. I, too, would like more information about this steering group which has been charged with this very important task.

As I say, the duty encourages proactive action to close equality gaps in health provision for different ethnic and other groups, and to ensure that services meet the needs of those who use them. It provides an important evidence base to support provision that is effective and efficient and ensures that services provide value for money, so it has served an important purpose. I hope that the Minister will accommodate some sections of this amendment and will look at equality impact assessments as a way of assisting the provision of services as opposed to being detrimental to them. I declare an interest as a commissioner of the Equality and Human Rights Commission when it instigated a review of the Treasury’s compliance with the duty as regards the 2010 spending review. The public sector equality duty can make a huge difference if applied purposefully, and was seen by people in the Treasury and, indeed, by people in government as a helpful thing to do. Aspects of that spending review, such as its impact on women and minority groups, might not have been considered, so the duty was seen as a positive and helpful measure. I hope that the Minister will say how she thinks we may continue on a positive note by rolling this out.

19:16

[Lord Deben]

I hope that the Minister will not accept this amendment because it seems to me that this is a good example of substituting reality with a bureaucratic answer. Surely what we are trying to do in this legislation is so to embed it in people’s attitudes and concepts that there is no need to have complicated bureaucratic form-filling and ticking-off. Most of us who run businesses would not dream of having a provision like this. However, most of us who run businesses would also be very insistent that decisions were made with a proper understanding of their impact on women as well as men and on minorities as well as majorities.

I hope the Minister will accept that many in today’s society consider that these issues should perfectly properly be dealt with in law—a law which I am happy to say looks as if it will be more inclusive than it has been up to now—but that people should themselves find the best way of handling them. The Government should not present people with a detailed arrangement such as appears in this amendment, which I am afraid very often becomes a substitute for action. People may say, “I have done my assessment and therefore I don’t have to think”. What we really need is for people to think creatively about how best to do these things. It is very much better not to lay down a recipe of the kind proposed in the amendment, which slightly reminds me of the nannying schemes which have made these provisions less popular than they ought to be. I am afraid that many people do not think of equality as a progressive and positive thing but rather as merely another drudgery which is laid on them. We do not want that; we want a society where equality is included as a natural way of looking at how you run a business, a local authority or a public authority. We do not want someone to feel that he or she has done their bit of homework, has ticked the boxes the right way and can now forget about it. I am afraid that the “I can now forget about it” syndrome cannot be legislated against but is very often the result of an amendment such as the one before us.

[Lord Harris of Haringey]

My Lords, having listened to all the debates today in your Lordships’ House, I am very conscious that there is a clear consensus among your Lordships on the importance of all organisations, particularly public sector organisations, working towards achieving equality. That has emerged in all the discussion that we have had. Core to that is the equality duty on public bodies.

I understand that the Government are reviewing all this but I hope that this evening’s debate will be influential in ensuring not only that they recognise the value of that general equality duty for the whole of the public sector, but also see the value of strengthening it in the way that this amendment seeks to do. My experience is that, if you are to achieve equality in the workplace—equality in terms of the way in which you provide services—it requires several things to be in place.

First, it requires visible leadership from those responsible for the organisation or in charge of it that shows that they believe that this is important. Secondly, it requires that policies are made in an evidence-based way; that information is used to assess how the policies are working, how the services are being delivered, who benefits and who perhaps is missing out. That requires the collection and collation of information, so that those in charge of the organisation can make the appropriate decisions. It also requires a degree of enforcement. But to say that you can achieve all of these things only by enforcement or only by one element of those different requirements is to set the arrangement up to fail.

I have listened with great interest to the speech of the noble Lord, Lord Deben, who has highlighted that you do not want to create a tick-box mentality. That is absolutely right and is true in all sorts of areas. That is not what you want to achieve. However, if people are trying to apply the general duty on equality—or indeed what would be implied by this amendment in terms of the way in which equality impact assessments are concerned—in a tick-box mentality, then you will lose out entirely. This amendment sets a framework by which all public authorities can say, “We are doing our job properly and effectively”. How can you argue that there is something overprescriptive by saying that the duty of the public authority should be to assess and consult on the likely impact of its proposed policies? Surely that is sensible good practice. How can you say that that is overprescriptive? It is simply requiring public authorities to do what is right.

Similarly, requiring public authorities to monitor their policies for any adverse impact is again requiring that they do what is right. It is not being overprescriptive; it is simply saying to them, “This is what you should do to deliver your general duty on equality”. This is not an overprescriptive amendment; it is something that is there to provide a framework which public authorities can use.

I am also very clear that, in making decisions, public bodies have to look, check and see what the implications are. These assessments provide a framework which requires them to consider all the relevant factors in doing that. I know that when we make a decision on a public body we are required to consider all the relevant considerations and not consider those considerations which are irrelevant—I forget the precise form of words, but that is the standard rubric. This provides a framework to make sure that all the relevant considerations are being addressed. More importantly, it provides an audit trail, so that anyone looking at it can see how a decision has been taken and how the different issues have been factored in because there has been an equality impact assessment. That places quite a pressure on those making decisions that they have not only considered all the relevant factors but are able to justify what they have done. That is an extremely important and very good discipline for those who make public decisions.

The equalities duty has been an important step forward for public bodies in this country. Some of them still struggle with how to implement it and some still have a long way to go but, as a basic building block for ensuring that public services are delivered fairly and in line with the objectives that I think all of your Lordships have said they support during the course of various debates today, they have been extremely valuable.

I mentioned at the beginning that one of the requirements for delivering equality, whether at local level, public body or by government, is leadership. I hope that the Government will show clear leadership in agreeing that there is an importance to the public sector general duty on equality and accepting the importance of this amendment, which provides a sensible framework for equality impact assessments.

The Prime Minister is worried that this is going to become overbureaucratic. I suspect that by providing a framework in legislation for what is needed, some of those overbureaucratic elements will disappear simply because people are no longer trying to interpret what might be a necessary way of doing this and erring on the side of caution. This is a way of setting out a framework which will enhance the work that public authorities should be doing to promote equality.

[Baroness Prosser]

My Lords, I support this amendment. I was reminded by the noble Lord, Lord Deben, of something that happened a good many years ago when I was the national women’s secretary of the Transport and General Workers’ Union. I was on a mission to include within the rulebook of the union requirements for each of our administrative areas to provide positive action programmes for women, and for sanctions to be introduced into the rulebook against those senior officials of the union who might be found guilty of harassment or bad behaviour towards women. “Attacked” is not the right word, but the response of more senior people in the union than me—men—verged on that. They said to me: “We don’t need a change in the rulebook, what we need is a change of culture”. I said: “Of course we do, I absolutely agree that we need a change of culture, but while we are working on the change of culture we will have a change in the rulebook so that outwith those rules you will not operate”.

We all know that large bureaucracies find it terribly difficult to shift. The idea that organisations out there—public sector bodies, services, et cetera—are going to be able to change their culture, and be willing or capable of doing that in any speedy fashion without some framework within which we require them to operate, seems to me to be cloud-cuckoo-land. I do not believe that if we remove the pressure for equality impact assessments to be the final step in delivering public sector equality duties we will see any change at all going on out there. I support this amendment and I hope that others will also do so.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece. I will explain my views on their amendment. I am grateful to them because it provides me with an opportunity to respond to some points which are important in this wider debate about equality impact assessments and the public sector equality duty.

Before I get into that, let me say from the start that this Government have a strong commitment to establishing a strong, modern, fair Britain which is built on two key principles: equal treatment and equal opportunity for all. The equality duty was designed to ensure that the needs of people are taken into account when public bodies develop, change, implement or review a new policy or service.

The amendment was discussed in Committee and, as has been explained by the noble Baroness, Lady Thornton, seeks to impose a number of processes on public bodies in addition to the central requirement to have due regard to the three main aims of the equality duty when exercising their functions. Some of the requirements it seeks to impose are already an integral part of the process of complying with the public sector equality duty. Having due regard to the equality duty when exercising their public functions is the legal duty on all public bodies. Let me be clear; that has not changed, nor has the requirement to be able to demonstrate that it has happened. For example, the proposal for public bodies to assess and monitor the likely impact of their proposed and actual policies is already required, while the requirement to publish the results of such assessments is caught by the requirement in the specific duties to publish information to demonstrate compliance with the duty. These requirements include considering the need to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations between people with different characteristics. Public bodies are also required to publish information at least annually to show how they have done this, and to set at least every four years equality objectives that will promote these aims. There is therefore already a thorough requirement on public bodies to have due regard to the public sector equality duty.

19:30

In his speech to the CBI last year, to which the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred, the Prime Minister was calling time only on the equality impact assessment process, which seemed to have become meaningless around Whitehall. He was not calling time on the duty to have due regard to equality in decision-making itself. Indeed, I referred in Committee to “reverse-engineering” where it was clear that departments had sometimes not considered equality as they made a decision, but used the form at the end of the decision-making progress to justify that decision. My noble friend Lord Deben in Committee referred to an example of a local authority taking matters too far to the other extreme and, perversely, being proud that it had done so because, for the local authority, it had demonstrated its commitment. I am grateful to my noble friend for his comments today and for expressing eloquently and powerfully, as he always does, why greater prescription on the equality impact assessment would have a detrimental effect on the way that we expect bodies to carry out this duty, and the ultimate outcome that it exists to achieve.

There are examples in case law that demonstrate that the courts have found a lack of due regard to equality in instances where an equality impact assessment has been produced. The fact that this has happened shows that some public bodies have done no more than do what we all say we do not want—a tick-box process.

I turn now to the review of the public sector equality duty, which the noble Baroness, Lady Thornton, asked about in particular. It is important to be clear on this. This is a review of how the duty is operating. In other words, is it delivering what was intended? It is not a review of whether public bodies should have due regard for equality when exercising their functions. To be clear, this is about how they have, not whether they should have, due regard to equality. It is vital to review our approach in this area to ensure that it is delivering as effectively as it can what all of us believe in and want: the achievement of equality and fairness, and that the elimination of discrimination as policy is made and services designed. My noble friend Lord Deben was eloquent in explaining why that is so important.

The review will explore the impact of the duty in terms of costs, burdens and benefits, and recommend what changes, if any, would ensure better equality outcomes in a non-bureaucratic way. The review is being overseen by an independent steering group, chaired by Rob Hayward, who, among other things, is a trustee of Central YMCA and an adviser to the Terrence Higgins Trust. The steering group is made up of senior figures with experience in public sector delivery, including the noble Baroness, Lady O’Neill, in her capacity as the chair of the Equality and Human Rights Commission.

[Baroness O'Neill of Bengarve]

I have observer status; I am not a member of the working party.

[Baroness Stowell of Beeston]

I am grateful to the noble Baroness for her clarification, and I am sorry if I misrepresented her position on the steering group.

The noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred to the membership of the steering group. I say clearly that its members have been selected because of their experience and knowledge around these issues, and it is not intended at all to be a politically representative body. The steering group represents the main delivery public sectors of policing, education, health, local and central government. It can use their expertise to shape the scope of the evidence-gathering and develop the final recommendations. As the noble Baroness, Lady Thornton, said, we have extended the timetable to June from the previous announced date of the end of April at the request of the chair and the steering group to help to ensure that the review and its recommendations are robust.

The evidence-gathering for the review began in January and includes a series of round tables, involving a wide variety of experts, to gather evidence on how the duty is operating. The first round table involved voluntary and community sector organisations such as the Equality and Diversity Forum, the Stephen Lawrence Trust and Age UK. The second involved lawyers from across the public sector. A further six round tables are planned, including with inspectorates, private sector contractors and senior decision-makers. The work will include site visits to public bodies, for example to a police force or a school, to examine the experiences of different individuals within an organisation. The work will also include the commissioning of qualitative research, which will be conducted independently—as is always the case in these matters—through a series of in-depth interviews with public bodies. We will be inviting evidence from organisations and individuals about the operation of the duty, which should provide insight about public bodies’ experiences of working with the duty. We are also analysing written evidence in the form of existing literature, case law and international comparisons. We are therefore approaching this review with an open mind and gathering evidence from numerous sources to get a comprehensive picture of how the duty operates in practice.

The noble Baroness, Lady Thornton, asked how we would respond once the work is complete and the steering group produces its report. As I am sure she would expect me to say, it is far too early for me to speculate on how we will respond. However, given that we have set up the review and given it the remit to roam and consult as widely as it is doing, we will clearly take the report seriously and are looking forward to receiving it.

The equality duty and supporting regulations provide sufficient safeguards for holding public bodies to account, and introducing a further legal requirement for an equality impact assessment will not add anything material. Furthermore, the timing is not right when we are taking stock of how the current legislation is operating in practice. As I have said before and to make absolutely clear, this is a review of how that responsibility is operating, not whether public bodies should have due regard for equality. I hope that I have been able to give the noble Baroness more information about the review, and I am grateful for that opportunity.

[Baroness Thornton]

My Lords, I thank my noble friends Lord Harrison and Lady Prosser, and the noble Baroness, Lady Hussein-Ece, for their comments. I also thank the noble Lord, Lord Deben, who, as ever, made pertinent comments.

The response from the Minister was actually very helpful. We do not agree and I would obviously much prefer that the equality impact assessments were mandatory. There is no question that that would work better. However, while the Minister may not have given much comfort to her noble friend Lord Deben in what she said about the way she sees the public sector equality duty and impact assessments working, I found the Minister’s response useful and helpful, and I will read her comments in greater detail.

As to the public sector equality duty review, it was useful and reassuring to know that the review is ranging far and wide and taking evidence from a range of bodies. The Government would have been wise to make the review more balanced, given that politicians from different councils are taking part. It would have been useful to have had a Labour person on the steering group, but that does not mean that the outcome will not be useful. I am also reassured that the review is taking time to get this right.

Given the information that the noble Baroness has provided to the House, I am happy, at this stage, to beg leave to withdraw the amendment.

Amendment 76 withdrawn.

Amendment 77

Moved by

[Baroness Prosser]

77: After Clause 59, insert the following new Clause—
“Commission for Equality and Human Rights: appointment of Chair and commissioners
(1) Schedule 1 to the Equality Act 2006 (the Commission: constitution, &c) is amended as follows.
(2) In Part 1, after paragraph 1(1) insert—
“(1A) Appointments shall not take effect until such time as they are approved by a Committee of both Houses of Parliament.”
(3) In Part 2, paragraph 7, for sub-paragraph (2) substitute—
“(2) An appointment under sub-paragraph (1)(a) shall not take effect until such time as it has been approved by a Committee of both Houses of Parliament.””

[Baroness Prosser]

Before speaking to this amendment, I should like to clarify for your Lordships any question of a possible conflict of interest. I was until 3 December last year the deputy chair of the Equality and Human Rights Commission. At that point, I had served two three-year terms and my appointment terminated. I therefore no longer have a direct interest in the commission but I do of course retain a general interest in both the commission and its work.

Turning to the matter at hand, perhaps I may express to noble Lords my overall view of the value of this part of the debate on Clause 57 and why this group of amendments is so important to the future of the commission and to equalities in our country more generally. The ability of citizens to feel and believe that they have an equal chance in life and, importantly, to feel and believe that their Government think they should have an equal chance is key and central to the development of a harmonious and comfortable society. At this particular time, with its harsh economic circumstances and shortage of employment opportunities, it is common for those who are struggling to lay the blame for their plight on those less familiar to them.

Situations such as these require Governments to be strong and forthright in making clear their support for tolerance and fairness, and to speak loudly of the value of legislation and government machinery which helps people to enjoy equal rights and to access recourse to justice when those rights are violated. Comments from government which continually link equalities legislation with red tape, bureaucracy and burdens undermine the confidence of citizens and allow for the growth of intolerance and unfair behaviour. The purpose of this group of amendments is to enable the Government to be seen to recognise that the Equality and Human Rights Commission is a valuable, serious and important tool in delivering and regulating equality legislation in this country. It would put the commission on the same footing, for example, as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman.

Strengthening the commission’s accountability to Parliament has been endorsed by the United Nations International Co-ordinating Committee chair. In a letter to the then Minister for Equalities, Theresa May, the ICC chair, Dr Mousa Borayzat, suggests that the Government should use the opportunity of this Bill to strengthen the provisions of the Equality Act 2006 in areas related to the commission’s independence.

Parliamentary scrutiny of the appointment of the commission chair has already taken place. The noble Baroness, Lady O’Neill, appointed in November of last year, appeared before the Joint Committee on Human Rights. That extra interest and study of the recommended candidate not only adds to the status of the appointment but involves and includes Parliament in the process. Greater knowledge and greater transparency ensue. Amendment 77 calls for this process to be extended to the appointment of commissioners—again, increasing knowledge and transparency—and I look forward to the Minister’s response on that point.

Amendments 78 and 79 seek to rectify the current unsatisfactory position whereby the commission’s annual report and accounts and the strategic plan are presented to whichever Secretary of State happens to have the current responsibility for equalities generally. Since its inception, the commission has reported to four different Secretaries of State, each of whom has had equalities added to their already busy portfolio of responsibilities. Changes to the responsibilities of those Secretaries of State have meant that the commission has been shuffled around Whitehall depending on where the Secretary of State came from. It is a very unsatisfactory state of affairs. Given that the rights and responsibilities contained within the equalities agenda touch every single adult in the land, is it not more sensible and more appropriate for Parliament to oversee and question these important reports and plans?

Finally, I turn to Amendment 80, which calls for the commission’s budget to be approved by Parliament. Two dangers arise from leaving the situation as it is. First, the current practice is for a budget allocation to be drawn up and allocated to the Government Equalities Office. This money then gets separated out with a share going to the EHRC. This hardly helps to instil any sense that the commission can maintain a healthy independence from government. Secondly, and most seriously, the EHRC is internationally recognised as the national human rights institution for England and Wales. Crucially, financial health and independence are central to our being able to maintain that international recognition.

In 2012, the UN General Assembly adopted the Belgrade principles. These relate to the relationship between NHRIs and national parliaments, and they include several mechanisms for closer relations between parliaments and national human rights institutions. For example, parliaments should develop a legal framework for the NHRI which secures its independence and its direct accountability to parliament. The principles also suggest that parliaments should invite members of NHRIs to debate their strategic plan and/or their annual programme of activities in relation to their annual budget. These amendments would enable government to state clearly that arrangements in this country most certainly comply with the Belgrade principles.

None of these amendments should concern the Government’s desire to go easy on regulation or so-called red tape. They are all designed to help the Government to promote their commitment to the equality and human rights agenda and to send a message to the citizens of Britain that government believes in openness and transparency and the delivery of equal opportunities for all. I beg to move.

[Baroness Hussein-Ece]

My Lords, I shall not keep the House too long as the noble Baroness, Lady Prosser, has given such a comprehensive introduction to this group of amendments, to which I have added my name. There are just a few points that I should like to add.

The steps outlined in the amendments are, as I see it, enabling. They enable the commission to fulfil its mandate more effectively and to achieve more balance between independence, accountability and transparency. They build on recent developments such as the first pre-appointment hearing of the commission’s chair, as was mentioned.

I declare an interest as a commissioner of the Equality and Human Rights Commission until last December. I am all too well aware that the commission is very keen to advance its relationship with Parliament and to have the ability to work across government departments. As has been said, the current arrangement has acted as a hindrance and has not oiled the wheels, so to speak, to enable the commission to work more effectively with other government departments—something that it should be doing. It has the responsibility to work with all departments across government, given its wide-ranging remit. The current arrangement of going through the Government Equalities Office has limited this to an extent. I see the commission’s responsibility for assessing how the Government comply with, for example, domestic and international equality rights obligations as a positive development and a strengthening of its relationship with Parliament.

At Second Reading, I said that setting the budget is so important that it needs to be done in a more timely, transparent and effective way. I was at the budget-setting process last year. I remember being at a board meeting in February when the commissioners still had no idea what their budget would be from 1 April. That is not satisfactory or acceptable, and it needs to be addressed. Taking these amendments on board would go some way to addressing this and making sure that the commission becomes more transparent and accountable and is allowed to function. We talk about a red tape challenge, but it goes both ways. There has been a lot of red tape attached to this commission from its inception. It has almost been bound and gagged at birth and has not been allowed to function properly. This is a way of releasing it to an extent, while keeping some important checks and balances in place.

[Baroness Thornton]

My Lords, I agree completely with the noble Baroness, Lady Hussein-Ece. I have written down “micromanagement by the Government Equalities Office is a bit of a red tape challenge that the Government could probably do well to look at”, so our thoughts were heading in the same direction. I see this group of amendments as continuing the positive discussion that we had in Grand Committee, where the Minister started to explain where the Government were going and what the direction of travel was. I see this group of amendments as part of that process and discussion, and I congratulate my noble friend Lady Prosser on her introduction.

What we are essentially addressing here is how the EHRC can deliver its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations, how it can best do that and how it can be independent in doing so. It seems to us that parliamentary accountability would provide the commission with that appropriate independence from Government to fulfil its role impartially. I hope that the Minister will accept something that I said in Grand Committee: this is not a means of stopping the Government setting the overall policy direction on equality matters. Everybody accepts that that is the Government’s job. However, it means that our Commission for Equality and Human Rights, apart from anything else, has the necessary independence to from time to time be critical of the Government and hold them properly to account.

[Baroness Stowell of Beeston]

My Lords, as I said in response to the first debate this afternoon, the Government want a strong, independent Equality and Human Rights Commission that promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as a strategic enforcer of the law. Clearly, we also value its “A” status and want it to retain it. We are committed to strengthening its accountability to Parliament and, in responding to this debate, I hope I can demonstrate what progress we are making.

I start with the appointments. As already acknowledged by the noble Baroness, Lady Prosser, and others who have contributed to the debate, the appointment of the new chair of the commission, the noble Baroness, Lady O’Neill, was for the first time subject to pre-appointment scrutiny by the Joint Committee on Human Rights. That is a move that the Government welcome. In January, we appointed six new commissioners and, with the appointment of the new chair, we believe that the new board marks the start of a new era for the commission steering it in a new strategic direction. We want to see the commission go from strength to strength. We are open to discussing with the Joint Committee on Human Rights how it can be involved in future appointments.

Since the debate in Committee, the Joint Committee on Human Rights has been in touch with my honourable friend the Minister for Women and Equalities, Helen Grant, who is the Minister responsible for the commission. The JCHR has set out its plans to work with the commission to strengthen the commission’s accountability to, and co-operation with, Parliament and, in particular, with the JCHR itself. I am aware that the JCHR seeks to work with the EHRC to develop a protocol of collaborative working strategies to improve accountability. I certainly echo the sentiment expressed in my honourable friend Helen Grant’s reply to the letter from the chair of the committee. We welcome the non-legislative approach taken by the JCHR, and following this exchange of correspondence, which was circulated to noble Lords before today’s debate, I understand that at the request of the chair of the Joint Committee on Human Rights a meeting will take place soon. To reiterate: there is ongoing dialogue between the commission and the JCHR to the effect that the noble Baroness, Lady Prosser, has argued for in her amendment.

I reassure the House that the commission’s annual report and accounts are already laid before Parliament, as well as its strategic plan and its reports on progress. With respect to the commission’s budget, since Committee, and as I referred to earlier today, we have published the outcome of the comprehensive budget review. This review, conducted in partnership with the commission, sets out the agreed level of funding adequate for the commission to fulfil its functions. As the noble Baroness, Lady O’Neill, said, the review agrees a budget that will allow the commission to,

“continue as an effective organisation in all our roles”.

Furthermore, as my noble friend Lord Lester mentioned in Committee, the commission’s founding legislation includes an obligation for Ministers to make sure that it receives reasonably sufficient funding to fulfil its functions. That will continue. As such, we do not believe that it is necessary for Parliament to set directly the commission’s budget.

The vast majority of public bodies are set up in a similar way to the Equality and Human Rights Commission, and that is because it is not practical as a general rule for Parliament to provide the level of day-to-day support often required. To agree a budget with an organisation requires quite a lot of ongoing detailed discussion to reach an agreed amount. That is not something which usually lends itself to the work of a Select Committee. My noble friend Lord Deben, who has a good deal of experience with this, made that argument during Committee. It is worth pointing out that, unlike most other such bodies, there is no power for Ministers to compel the commission to do anything, so in terms of the process by which it agrees its budget, it does not set a budget to ensure it fulfils something that it does not want to do.

Moving on to the framework document, officials are working with the commission to put in place a new, improved framework by the end of this month. While I cannot go into the detail as this work is ongoing, I can assure noble Lords that officials are working to ensure the commission’s independence is not compromised by the need for it to be accountable. The noble Baroness, Lady Prosser, and others referred to the ICC’s view of the commission’s accountability to Parliament. It is quite right that in 2010 the ICC, as part of its special review, suggested that it might be sensible for the Government to consider increasing the level of the commission’s accountability to Parliament. Our view is that this is being achieved through the steps we are taking, some of which I have just outlined. I should also make clear that the commission was accredited as an “A”-rated institution without any change in its reporting arrangements. My point is that its “A” status was conferred on it as it is currently constituted, so it already exists in the way that it is constructed. I am aware that the commission will be considered at the next meeting of the ICC’s sub-committee on accreditation in May. As I stated in Committee, we have a constructive dialogue with the chair of the ICC and this will continue.

20:00

My noble friend Lady Hussein-Ece raised the relationship between the commission and Ministers and its accountability to Parliament. Let me be clear, the commission is accountable to the Secretary of State for Culture, Media and Sport in her capacity as the Minister for Women and Equalities. She in turn is accountable to Parliament. That is a standard arrangement for non-departmental public bodies. The rules governing the relationship between the Government and the commission are the same as those for the majority of non-departmental public bodies. As I said just a moment ago, like most other such bodies, Ministers have no power to compel the commission to do anything. Parliament has scrutinised and challenged the work of the commission through Parliamentary Questions, Select Committee hearings and correspondence and will continue to do so.

I hope I have been able to demonstrate that we have worked hard with the commission to strengthen its relationship with Parliament and that we continue to support further engagement. We believe that working in partnership with the commission, as we did on the recent budget review, is the most effective way of securing the best possible outcome for the commission in fulfilling its role as a respected and valued institution nationally and internationally.

The commission continues to make great strides in improving itself as an organisation, and we look forward, as I am sure the whole House does, to an improved and closer working relationship between the commission and Parliament. I hope that after this response, the noble Baroness, Lady Prosser, will feel able to withdraw her amendment.

[Baroness Prosser]

I thank the Minister for that very helpful response. In fact, it was rather more helpful than I thought it might be. Obviously, they were very positive words and comments. Perhaps I may make a couple of points on some of the matters that have been raised. I am grateful to hear that discussions are going on with the Joint Committee on Human Rights regarding further involvement in the appointment of commissioners, for example. The discussion around the development of protocol will be extremely helpful. On the budget, I of course understand that these matters start their life within the Treasury and work their way out from there. Perhaps some consideration might be given to the involvement of the Joint Committee on Human Rights as the debate evolves.

Finally, the framework document has gone through many iterations over the past year or so. I am grateful to hear that it seems to be moving towards containing a respect for the independence of the commission, which has been a concern during that time. With those comments and with thanks to the noble Baroness for her remarks, I beg leave to withdraw the amendment.

Amendment 77 withdrawn.

Amendments 78 to 80 not moved.

Consideration on Report adjourned.

First World War: Centenary

Monday 4th March 2013 Lords Chamber

Question for Short Debate

20:04

Tabled By

[Lord Clark of Windermere]

To ask Her Majesty's Government what plans they have to commemorate the centenary of the First World War.

[Lord Popat]

My Lords, because the noble Lord’s Question for Short Debate will now be taken as last business, the time limit for the debate becomes 90 minutes rather than 60 minutes. Speeches should therefore be limited to three minutes, except for those by the noble Lord, Lord Clark of Windermere, and the Minister, which remain limited to 10 and 12 minutes respectively.

[Lord Clark of Windermere]

My Lords, it is a privilege to lead this debate on the Government’s proposals for the commemoration of World War I. It is a war which came to epitomise carnage and human sacrifice. Many in this House will have had grandparents and occasionally parents who participated in that conflict. My own grandfather left the pits of County Durham to mine under the German lines. I remember a photograph on the mantelpiece of my other grandfather handling horses with the border regiments.

There was a terrific response to the war and to patriotism. Even as late as the 1950s when I worked in Cumbria, there were still many who had fought in World War I. The interesting thing was that very few of them ever spoke about it. About 20 years later, when I was doing some research into the early years of the Labour movement in Britain, I met a great many other individuals who had taken the opposite point of view. Many had been conscientious objectors who opposed the war—not usually on religious grounds but on political grounds. Their opposition was not upheld by the tribunals and most of them ended up in prison. Indeed, they were very strange jailbirds. However, one thing was clear: both sides respected the other over the years and both groups of individuals were very brave. One must accept that.

I found preparing for this debate quite difficult. I am not a pacifist. For five years, I was the principal spokesman for my party as the Shadow Secretary for Defence. I was a member of the political wing of NATO for nearly 20 years and I had the pleasure of leading the British delegation for more than five years. However, I must admit that in studying World War I, at times I have found it very difficult to justify. World War I was divisive then and it is now, in both its justification and especially, probably, in its conduct. The latter continues to divide our society, which has been one of the challenges for the Government and Dr Murrison MP as he tried to outline a plan of approach. I think that basically he has got it right.

The phrase, “lions led by donkeys”, so aptly used by another former Member of the other House, Alan Clarke, still resonates today. The stories of hampers from Fortnum & Mason and the approximately 200 British generals driving their Rolls Royces behind the lines really did not go down well when those soldiers returned to the land fit for heroes.

In a sense, it was not only the beginning of the war that was divisive but the aftermath as well. I believe that every one of us in this House will agree on one thing; namely, the bravery, courage and valour of the men who suffered the horror and deprivations of that war. Life in the trenches was hell. With that we can all agree. I think that that is a rallying point for us tonight. One realises that more than 1.2 million allied servicemen lost their lives and double that number of Germans lost their lives in that conflict. Overall, 10 million people died.

Even today, going into the fields of Passchendaele you are told that there still are 100,000 bodies unaccounted for. In one day at the Somme, 200,000 British military personnel lost their lives. As the Prime Minister said when he launched the Government’s commemoration, of the 14,000 parishes in England and Wales, only 50 did not lose any parishioners during World War I. In Scotland and Northern Ireland, not a single community could boast even that.

I checked very quickly up the road from where I live in Grasmere, and 25 people in a very small village lost their lives in World War 1. Tragic as it was, only two lost their lives in World War 2. The scale of the carnage is clear for all.

The Government have recognised these sensitivities. Correctly, they have ruled out any talk whatever of celebration, and the emphasis is on commemoration and remembrance, and that is correct. They appear to have the tone right, although I trust that over the four years of the commemorations there will be flexibility in which we can adapt to what is needed. The Prime Minister identified the objectives when he said on 11 October last year that the commemoration was,

“to honour those who served; to remember those who died; and to ensure that the lessons learned live with us”.

That is absolutely right.

World War I was a turning point not only for us here in Britain, but for the whole of Europe. Initially, volunteers flocked to fight for king and country. That slogan began to lose its appeal fairly quickly and conscription had to be introduced. What began as a war between three conflicting empires headed by three monarchs—three cousins—quickly changed and the consequences for the class structure throughout Europe were certainly challenging.

What began as patriotic fervour ended by laying the groundwork for democracy and freedom across the continent and a growing awareness of internationalism. Those are three things that we should not shy away from. As we commemorate what those brave men fought for, it was for democracy, freedom and a better way of resolving international problems than going to war.

The effect shook the Government. Some 8.4 million women were given the vote in 1918. Hurrah to that. All men were given the vote, because prior to 1918, only just over half the men had the vote. Many working men did not have a vote and that was put right. It was a major step towards democracy.

We must make sure that the commemoration of which we speak flows across the nation and through local communities. There will be the great national events, with the Imperial War Museum providing the lead. Other national institutions such as Westminster Abbey, the British Library, the Armed Forces, the Royal British Legion, the BBC, the War Memorials Trust, the Woodland Trust and many others will all have their parts to play. But most of the activity will be at community level. This will underpin the activity and ensure that the commemoration is a success and long lasting.

The Government’s plan for every secondary school and a teacher to be able to go out to France, Belgium and further afield is very much to be welcomed. I understand that that will be paid for by a special government grant. However, the demand in the localities of the local history libraries and county archives will be very strong. We must make sure that people are not disappointed and I therefore ask the Government to make sure that adequate money is not only provided nationally but at a local level as well.

20:14

[Baroness Fookes]

My Lords, I am sure that all of us in this Chamber are most grateful to the noble Lord for giving us the chance to debate this matter and for the thoughtful way in which he approached the subject himself. He reminded us that grandparents or even fathers fought in this war. As a private soldier, my own father did so as a very young man. When I was thinking about that, it suddenly struck me for the first time that had he not come through unscathed, at least in body, I should not be here at all. That may be a matter on which there is a division of opinion, but it is a sobering thought that so many lost their lives in that war, as has been said so eloquently this evening.

In the short time that remains to me, I want to stress the role of women, which was touched on by the noble Lord, Lord Clark. First, many young women lost their young husbands and probably for ever after remained widows, perhaps bringing up small children. We saw this in the Second World War as well of course, but in the First World War there was no War Widows’ Association, of which I am proud to be president, to take care of them. It was a very difficult road for them not only emotionally but in practical terms. We need to remember that.

We should also remember the immense contribution made by women in the workplace when so many young men were taken off to fight and the women filled in the gaps, even in the munitions factories. It was probably that contribution that contributed very much to their emancipation in 1918, although of course there was still a certain caution as I believe they could not vote until the age of 30. It was 10 years later before they could vote at the general age of 21, but at least it was a start.

We need also to remember those women who never even had the chance to be married or to have children because of this great dearth of young men who were sadly killed in the very prime of their lives. That must have been a very great tragedy for all those women—a kind of unseen tragedy—and we ought to remember them. It is my hope that, when the Minister answers tonight, he will indicate that this role of women in its various forms will permeate all the commemorations which will take place whether nationally or locally. I do not want to see this as an add-on or afterthought. I want it to be right in the midst of it. I shall conclude on that note.

20:17

[Lord Foulkes of Cumnock]

My Lords, I am pleased to follow my almost namesake and I am sure I speak on behalf of the whole House in saying that we are glad her father did survive and that she is with us as a result. I am also glad that I have time to thank my noble friend Lord Clark of Windermere for raising this issue today.

My interest in these World War 1 commemorations arises for two reasons. The first is personal. Both speakers have said this already and I am sure more will do so. My maternal grandfather, Alexander Rhind, served with the 6th Gordons in France and Flanders. He won the Military Medal for Gallantry. I still have that medal and I am very proud to keep it.

I have also been pursuing the interests of a certain football club with which I have connections. I have raised this previously in a Question. Almost the whole of the first team of Heart of Midlothian Football Club joined up and served in McCrae’s Battalion in 1914-18. Sadly many of them did not return. Those of us connected with the club are particularly anxious that there should be a mention of this and an involvement in the commemorations of the club, the fans and everyone else. As a result, I have been in touch with many of the public and private people involved in the commemorations—and there are many groups already. I have encountered two problems that I wish to raise. The first is the lack of co-ordination at both a United Kingdom and a Scotland level. In Edinburgh the Lord Provost is bringing together all those involved so there is co-ordination there. However, it is important that there is greater co-ordination to help build up momentum at both a Scottish and a United Kingdom level, so that people know what others are doing and work together in a more effective way. With respect, I do not think this is happening at the moment.

Secondly, we also need some greater imagination and I think this is lacking at present. As my noble friend Lord Clark of Windermere said, we have the military, the museums and galleries, and the schools involved—the traditional interests—and they are planning the usual kind of activities. This is very welcome, very worthy, but it is not enough. This country which marvelled at the brilliant spectacle of the Olympics can and must do better. We must involve all aspects of our life. The theatre can put on great performances; music can be composed specially; the arts should be involved. All sorts of sporting activities can take place. After all, at Christmas there was a truce and a football match took place. We should take these things, work on them and make it much more exciting. Millions gave their lives for us in 1914-18 so we need a series of high-quality, imaginative and above all unforgettable events and activities in 2014-18.

20:21

[Baroness Bonham-Carter of Yarnbury]

My Lords, like my noble friend Lady Fookes, I shall draw attention to the vital contribution made by women in the First World War. When I look around this House and see how many men and how few women have put down their names to speak, I hope I am not going to be too repetitive where this debate is concerned.

I want to start by congratulating the Heritage Lottery Fund on awarding £140,000 to centenary projects that specifically celebrate the war effort of women. This includes £70,000 to the Florence Nightingale Museum to commemorate the volunteer field hospital at Bourbourg near Dunkirk.

Women were not, of course, only field nurses. Approximately 1.5 million joined the workforce during World War 1. They worked across government departments, on public transport, running post offices, as clerks in businesses and, as the noble Baroness, Lady Fookes, mentioned, as munitionettes. Women’s war work included non-combat jobs in the military services but they were also part of anti-aircraft units which shot down German planes.

In the words of suffragette, Dame Millicent Garrett Fawcett:

“The war revolutionised the industrial position of women … It not only opened opportunities of employment in a number of skilled trades but, more important even than this, it revolutionised men’s minds and their conception of the sort of work of which the ordinary everyday woman was capable”.

That, of course, as was mentioned by the noble Lord, Lord Clark of Windermere, and the noble Baroness, Lady Fookes, led finally to emancipation. They also joined trade unions. In 1914 there were only 357,000 female members; in 1918 there were over a million. Despite this, women’s wages remained unequal. Today, 100 years after the First World War and 40 years after the Equal Pay Act, women working in the UK are still paid on average about 15% less per annum than men. Perhaps I may suggest to my noble friend the Minister that an appropriate and lasting legacy would be a commitment to closing this gender gap at last.

Finally, other noble Lords have talked about their ancestors. I will not go into too much detail about my great-grandfather, but my grandmother’s generation lost brothers, lovers and friends, and only 25 years later it was happening again. My own first cousin never knew his father due to conflict within Europe—due to European fighting European. In commemorating this centenary, let us please emphasise the importance of collaboration over isolation.

20:24

[Viscount Colville of Culross]

My Lords, I declare an interest as a director of history programmes at the BBC. I should like to thank the noble Lord, Lord Clark, for bringing forward this timely debate.

Quite rightly, the big events planned for four years from 2014 will concentrate on remembering the dreadful loss of life that took place in the First World War, but if those sacrifices are to mean anything, they have to be put into an historical context and they have to raise questions which are relevant to the citizens of a democracy in this, the uncertain 21st century. The most important question of all is: when is it right and just to go to war? I know from making history programmes myself that the great stories of history remain just that, great stories, unless they raise questions which can connect with a modern audience. Our Armed Forces are still engaged in Afghanistan and there is the political temptation to become involved in other wars, albeit for the highest moral reasons. So these questions have never been more important for the people of our country and its leaders.

For this legacy to have a really lasting resonance, we need to bring fresh eyes and thoughts to the First World War as a great catalyst for change. I would like to see historians shine a light on to hitherto unexplored areas of change during that tumultuous era. After all, it was the first time that we saw total economic mobilisation, with its huge industrial and social consequences. Likewise, it would be good to look at the role of religion in the various arenas of the First World War because it is still not well understood. In the Middle East, we saw Islam, Judaism and Christianity come in conflict, a legacy that we still live with today. And maybe we should even investigate the states of emergency declared by Governments during the war which allowed the progressive extension of government intervention into the lives of citizens. Might this not help us in our debates about current terrorist legislation?

I would like the people of Britain to go on an extraordinary journey over the four years between 2014 and 2018. By 2018, I would like them to be giving recognition to the totally different world we live in by enhancing the appeal of Armistice Day so that it becomes not just a day of remembrance, but something even more powerful and forward-looking. All the veterans of the First World War have died and by 2018 the 70th anniversary of VE Day will have passed. There will be only a few veterans of the Second World War left. We will always need to remember the great sacrifices made by so many brave men and women in the First World War and in all wars. However, I would like to ask this of the Minister. Could 11 November also be a day of national reconciliation and self-awareness? Perhaps we could even give it an additional name. We could call it Remembrance and National Day.

20:27

[Lord Cope of Berkeley]

“When you go home”, look at your local war memorial. War memorials are our inheritance from those who first resolved that, “We will remember them”. Most are getting close to their centenary now. They belong to us all, and therefore in a way often seem to belong to no one. I am a trustee of the War Memorials Trust. The trust helps to conserve such memorials of every kind in the UK. Jointly with English Heritage, we have just launched warmemorialsonline.org.uk which enables the public—including noble Lords, if I may say so—to register their local memorials and to tell us about their condition.

Another of our programmes helps to prevent the stealing of plaques by metal thieves. Metals at risk can be painted with a forensic liquid called SmartWater which enables stolen metals to be traced, even if they are melted down. It is a great deterrent that is now widely applied to church roofs and other vulnerable metals. Thanks to our partners, the SmartWater Foundation, any war memorial can be protected in this way free of charge. I hope that noble Lords will ensure that their local memorials are recorded and protected.

I hope also that the commemorations will include all the participants in that terrible war. It was not, as it sometimes seems, just Britain v Germany full stop, as it were. My father first served on the Western Front at Passchendaele and elsewhere, partly with colonial troops from the West Indies. After recovering from a wound, he was sent to join Allenby’s force in Palestine, which had a large Anzac element fighting alongside the Arabs against the Turks. En route there his troopship was torpedoed and sunk in the Mediterranean by a German submarine, and he and others were rescued by one of the escorting destroyers from the Japanese navy. It is for such reasons that it was called World War 1, and we should commemorate it in its entirety. However, in my view the real disaster was the Versailles Peace Conference. One commentator at the time said that we had fought the war to end all wars, and he feared that we had just agreed the peace to end all peace.

20:30

[Baroness Andrews]

My Lords, I am very pleased to take part in the debate this evening. I congratulate the noble Lord, Lord Clark, on securing this opportunity, and on his speech which captured the totality and scale of the war without passing over the fact that what we remember—the extraordinary, haunting images which we hold of this war—are individuals, usually men, on the battlefield.

I declare an interest as chair of English Heritage. We will be commemorating the war in many different ways. We are going to focus on the sites and memorials associated with the First World War, and the often untold and unrecognised heritage. Many of the great buildings which we hold in trust—the castles and great houses—were, for example, turned into hospitals and training camps. We will be conserving the story of Cannock Chase, for example, which is the largest of the training camps. In Richmond Castle, there is graffiti left behind by conscientious objectors, which is now in a state of decay. This is an extremely important and honourable part of the memory which we must honour as well.

Obviously, we also want to generate new knowledge. We are seeking to fund a pilot national archaeology project to research and record traces of World War 1—another programme for the noble Viscount, Lord Colville, I hope. It will also enable us to think again about the significance of these sites, about how we designate them in the future and how we conserve them. The noble Lord, Lord Cope, spoke about the work that we are doing on war memorials, and we are very proud to be in partnership with the War Memorials Trust and with other partners up and down the country.

We will also generate new research. We have historians who will be working on aspects of the home front and on the shipwrecks, for example. Above all—and I hope that this will please the noble Lord, Lord Foulkes—we will be working very closely with schools to help young people to understand the impact of the war on their own families, communities and histories. Through the Heritage Schools Make History project, we will invite schools to make a national archive of local World War 1 stories, presented as short films and made publicly accessible. There have been wonderful ideas across the Chamber this evening already as to how we can make these live again and connect communities.

Picking up something that the noble Viscount, Lord Colville, said, I also hope that it will be a time to think about other aspects of how we construct our history and our memory. A great book written about 20 years ago by Paul Fussell entitled The Great War and Modern Memory demonstrated just how powerful the images, language, experiences and literature of the First World War are, and the impact that the war has had on our own history, lives and memories, and on how we think about our relationships. It is an extraordinary book about an extraordinary time and war. I hope that we will be able to listen again to those voices of the war, in literature and music; to think about how science and technology aided conflict, and about the abuse of science; about the many things which were done for the first time; about what we mean by patriotism; and about what Wilfred Owen meant when he talked about the pity of war.

20:33

[Lord Bilimoria]

My Lords, I was with my 98 year-old grandmother, Ratti Bilimoria, in Mumbai last month. She calls herself a war baby because she was born in 1914, soon after the start of the First World War. I am a former chairman and current member of the Memorial Gates Commemoration Committee. Every year at the Memorial Gates on Constitution Hill here in London—erected primarily due to the efforts of the noble Baroness, Lady Flather—the committee commemorates the contribution of the nearly 5 million volunteers from the Indian subcontinent, Africa and the Caribbean who served in the two world wars. We would not have freedom today had it not been for the courageous sacrifice and service of these brave individuals. I thank the noble Lord, Lord Clark, for initiating this debate and for his powerfully delivered speech.

In the First World War, 1.5 million people from the Indian subcontinent served and over 70,000 made the ultimate sacrifice. My late father, Lieutenant-General Faridoon Bilimoria, was commissioned into and later colonel of the regiment of the 5th Gurkha Rifles (Frontier Force). The 5th Gurkhas served in the First World War in Gallipoli and Mesopotamia, and incurred huge loses. Sadly, over the past 100 years conflict has persisted. In the First World War, the only Indians allowed to become officers were those who served in the medical corps. After the First World War, my late grandfather, Brigadier Bilimoria, was one of the first Indians to be commissioned at Sandhurst, at a time when only eight Indians a year were given the opportunity to become officers.

Will the Minister assure us that next year, in 2014, when we commemorate the centenary of the First World War, this Government will not only acknowledge and recognise but prominently figure the amazing contribution of these millions of volunteers from the Indian subcontinent, Africa and the Caribbean, commemorated by the Memorial Gates? Will the Government also ensure that every school in Britain—every primary school and secondary school—has events, a whole day or even a week where the students are taught about the amazing contributions made by these individuals? The children must not only appreciate what these brave people did for us and how we benefit from that today but also understand that they gave their today for our tomorrow.

Sadly, as I said, conflict has persisted over the past 100 years and will continue to persist. It is crucial for our children to learn about and be inspired by the precious sacrifice that these millions of individuals made. We must always remember them. We must never forget them. We will be eternally grateful to them.

20:36

[Lord Lexden]

My Lords, it is surely imperative in this important debate, initiated with so much wisdom by the noble Lord, Lord Clark of Windermere, that due tribute should be paid to the contribution made by Ireland, north and south, both parts being full members of the United Kingdom throughout the war. Over 200,000 Irishmen enlisted voluntarily, since conscription was never applied to Ireland. Some 30,000 gave their lives in the wider cause of freedom, a cause that meant so much to many of them within Ireland itself.

Irish nationalists responded to the rallying call issued by their leader, John Redmond. Irishmen, he said, should go,

“wherever the firing line extends, in defence of right and freedom and religion”.

That firing line was at its most extensive and vicious at the Somme, where the blood of the famous 36th Ulster Division, composed mainly of Unionists, flowed abundantly. The war correspondent Philip Gibbs wrote:

“Their attack was one of the finest displays of human courage in the world”.

Of the nine VCs awarded in that battle, four went to the men of the 36th. Marshall Foch, supreme allied commander, said afterwards:

“I saw Irishmen of the North and the South forget their age-long differences, and fight side by side, giving their lives freely for the common cause”.

Tragically, sacrifice in the common cause went uncommemorated for many years at official state level in the independent south that emerged after the war. Thankfully, in our generation that has completely changed. Who could forget the wonderful sight of Her Majesty the Queen laying a wreath at the Irish National War Memorial Gardens in Dublin two years ago in honour of all Irish soldiers who gave their lives in World War 1? In planning events for 2014, our Government and that of the Irish Republic must ensure that sacrifices in the common cause are remembered with due reverence and gratitude, and with increased understanding of the background to them. I understand that welcome cross-border educational programmes are envisaged. They must be rigorous and soundly based in historical fact. There is always a danger that some facts of the past may be diluted to promote reconciliation in the present. In the words of Marshall Foch,

“the generations that come after us shall never forget the heroic dead of Ireland”.

20:40

[Lord Watson of Invergowrie]

My Lords, I, too, thank my noble friend Lord Clark of Windermere for achieving this important debate in the run-up to marking the terrible conflict of the First World War.

I was very pleased to note what the Prime Minister said in the press release that accompanied the announcement of the events that will form the commemoration. Those comments, I am pleased to say, were echoed by the Minister in his response to the Question from the noble Lord Clark of Windermere in this House two or three weeks ago when he said they would be about commemoration not celebration. There can be no room for triumphalism because there is nothing to be triumphal about.

Of course victory was important in 1918 but at such a terrible cost that I believe that all who died in that conflict—the Imperial War Museum says it was 16 million people worldwide—should not be forgotten. Although 16 million people lost their lives there was a ripple effect on the parents, wives, husbands and children who never completely got over the loss they suffered when their loved ones did not come back from war.

It is often said that death is a unifying force, and where great numbers are involved that certainly is the case. That is why I was pleased to read of the agreement recently signed by the Commonwealth War Graves Commission and the Volksbund Deutsche Kriegsgräberfürsorge, its German equivalent, to ensure that work on commemorating and maintaining the graves of those who lost their lives will be done, to some extent at least, on a joint basis. That is very much to be welcomed.

I am also pleased to see that education is at the heart of the events that are to be organised between 2014 and 2018. Education was responsible for my interest in the First World War. I am not particularly interested in military affairs; I am not even particularly interested in the rest of the First World War, but the Western Front just gripped me as a student studying the 50th anniversary of the Battle of the Somme at school. I sought out my grandfather, who had served in the Argyll and Sutherland Highlanders during the war, but he would not say a word about it. He had blanked his mind out as it was just too horrible to talk about.

I have since made many visits including—I have to say in respect of the remarks of my noble friend Lord Foulkes of Cumnock—to Contalmaison where the plaque is to the Heart of Midlothian footballers who so bravely gave their lives. I have also done much reading. I particularly recommend the first-hand accounts—many are still in print.

Finally, I want to say a bit about the question of loss. In Scotland 26% of those who marched away to war did not return. In the rest of the UK—and, as the noble Lord, Lord Lexden, reminded us, that included the whole of Ireland—it was something like 12%. I hope it will not just be in the commemorations that are going to take place in Scotland that the sacrifice made by the people of Scotland for the United Kingdom and, indeed, the Commonwealth will be remembered.

20:43

[Lord Shipley]

My Lords, every time I attend a football match with a large crowd I go through the same routine. I estimate as best I can 21,000 people and then reflect that this is the number of men from Great Britain, Ireland and Newfoundland who died on the first day of the Battle of the Somme, and then I reflect that a further 35,000 were casualties on that day. World War 1 was a devastating war that should never be forgotten.

I am a member of the War Memorials Trust and the Western Front Association, and am a friend of the Lochnagar crater on the Somme. I believe that events to mark the centenary should be based on the principles of commemoration, reconciliation and remembrance. These principles lead me to suggest that Mons should be a location for major commemorative events in 2014 and 2018. Mons is where the very first and very last shots of World War 1 were fired. It is also where British and German soldiers were buried in nearby plots in 1914 and so would be an appropriate location for services of reconciliation.

I suggest two ways in which we should maintain our local communities’ memory of the horrors of the Great War once the centenary is over. First, all local authorities should have an identified officer with responsibility for overseeing all war memorials in their area, if they do not already have one. They should all be asked to identify ways of ensuring the restoration of First World War memorials, where this is desirable, given that the centenary of those memorials will take place over a decade or so, from 2019. Public subscription, sponsorship and match funding, perhaps from the Heritage Lottery Fund—and, perhaps, using young apprenticeship schemes in restoration techniques—could all be encouraged.

Secondly, we need to keep the study of the First World War in our schools curriculum. I hope that the centenary will not be seen by anyone as a closure event, because young people’s learning is the best way to ensure that the memory of what happened, and how dreadful it was, is kept alive.

Finally, on the role of football, the Christmas truce in 1914, in which friendly games of football—or footer as it was known to many—were played, resonates with many people. It has been suggested that football games would make light of the war. I do not agree, for the reason that the football actually happened. I am keen to see a reconstruction of the truce where it is known to have occurred, particularly at Armentières, with football matches being played—perhaps by youth teams from the areas represented in each of the trenches in Christmas 1914.

There was a failure of international leadership in the period leading up to the outbreak of the war, as Europe slid into that war, and a failure to compound the power of newly invented weapons to wreak havoc. Both failures resulted in death and destruction beyond comprehension, so we have to remember to commemorate and to encourage reconciliation. I hope that the centenary will achieve just that.

20:46

[Lord Cormack]

My Lords, it is a great honour to be able to take part in this debate. Like others, I thank and congratulate the noble Lord, Lord Clark of Windermere. The enormity and horror of the First World War came home to me in a very personal way when my mother died in 2000. In going through her papers, I discovered something that she had never told me: six of her cousins—six out of eight—had been killed in the First World War.

I would like to make a few suggestions as to our commemoration. At the very beginning of the year, it is terribly important that we focus attention on the horrors that came after. August is a difficult time to have a national commemoration, although we should set aside the Sunday nearest 4 August. However, so that our children can be engaged in their schools it would perhaps be sensible to have something on 28 June because in a sense that day, the day of the shooting of the Archduke in Sarajevo, was the event that triggered that appalling conflict. We need to engage the attention and imagination of our young people throughout these four years.

The noble Lord, Lord Davies of Coity, and I both introduced Bills—I in the other place and he in this place—which would have set aside Remembrance Sunday as a very special Sunday, on a par with Easter Day and Christmas, with all the shops closed. The bells might ring but not the cash tills. I suggest that during the four years of commemoration, we should do that with Remembrance Day. Then, when we come to 1918, we should set aside 11 November as a day of national reflection. Everything should close commercially and we should be able to focus upon what happened then and what has happened in the 100 years since. We should give thanks to those who lost or gave their lives and to those who were mutilated and whose lives were destroyed, even though they might have physically lived on.

In order to focus national attention on this, I would like there to be a competition involving all schoolchildren, on the theme “Lest we forget”. There would be essays, poetry and works of art, and the best of them would be collected into a volume that could then be given to all our schoolchildren. These four years are, as so many have said, four years not of celebration but of commemoration. It is crucial that we do not lose an opportunity to focus on the horror of war and the beauty of peace. I trust that we will be able to do that.

20:49

[Lord Maxton]

My Lords, I thank my noble friend Lord Clark—and I call him my noble friend quite literally—for introducing the debate and for making a speech that was balanced, thoughtful and powerful. I come from a slightly different tradition from those who have spoken so far. My family did not fight in the First World War. In fact, my family opposed the First World War. My uncle, of course, was Jimmy Maxton and he went to prison in Edinburgh—the Calton Jail—for urging munitions workers to strike in order to stop the supply of munitions to the front and therefore trying to stop the war. My own father went to jail because he applied to be a conscientious objector. His appeal was turned down and he was conscripted under the 1916 Act. He was taken to Stirling Castle where he was ordered to put the uniform on. He refused to do so. He was court martialled and spent a whole year in Wormwood Scrubs as a result.

I come not only from a family that opposed the war but also from a city, Glasgow, although I may not sound as if I come from Glasgow, where to some extent—not a majority by any means—a revolt against the war was political and became part and parcel of the city’s experience. First of all there was a political side: the Jimmy Maxtons. We must remember that Keir Hardie, who was the founding father of the party on this side, opposed the war. One of the great iconic pictures for me is of Keir Hardie, leading an anti-war demonstration in August 1914, speaking in Trafalgar Square. Our first Prime Minister, Ramsay MacDonald, too opposed the war.

There was then increasing trade union activity in Glasgow against the war, led by people such as David Kirkwood and William Gallacher. David Kirkwood finished up as Lord Kirkwood of Bearsden—I gather the grandfather-in-law of the noble Lord, Lord Vallance. He did not go to jail. He suffered an even worse fate. He was deported from Glasgow to Edinburgh. It is difficult to imagine a worse fate than that. Therefore, I represent a different tradition and I hope that when we commemorate the war that tradition will be part and parcel of it. Perhaps I may suggest to the noble Viscount, Lord Colville, that he may want to look at doing programmes on that tradition. In terms of the women, there was the rent strike in Glasgow.

Lastly, the noble Lord, Lord Bilimoria, is wrong. Yes, there is still violence and killing in the world but can one imagine a Minister during the First World War standing up and reading out the list of those who have died, as Ministers do now for Iraq or Afghanistan? They would not have been off their feet for four years if they had done that in the First World War. We have reduced violence. Let it long continue.

20:53

[Lord Tyler]

My Lords, my wife and I visited the western front battlefields last October. My father served as a young Royal Engineer officer. He never spoke about it, trying to blot out its nightmares. Only recently we discovered that he had been awarded the Croix de Guerre. He never said a word about that either. Of course, he was one of the lucky ones, and that is why I am here. Among the many military cemeteries, we found the memorials of my three uncles killed aged 26, 21 and just 18. So many young lives cut short. So many families bereft. Like many others, my grandparents never fully recovered from their loss.

Faced with row upon row of graves—we also visited Irish, French, Australian, Canadian and German memorials—it is frightening to think that their sacrifice did not achieve the war to end all wars that they thought they were fighting for. That surely must be the tone and the theme of any anniversary. That war was largely pointless, meaningless and avoidable. As others said, we should not be celebrating its absurd origins, however much we may pay tribute to those who fought, were wounded or lost their lives. Instead, we must remind ourselves of the futility of negative nationalism, so sharply distinct from positive patriotism.

The year 1914 marked a terrible failure of common sense and common humanity. Personally, therefore, I will find it difficult to mark the centenary of the war’s outbreak with anything other than a resolve that we should do all we can to reconcile the peoples of Europe in the 21st century, avoiding new “foreigner” scapegoats for our economic troubles, and perhaps also reminding ourselves of the 1914 warmongering populism of the British press, which seems familiar. I do not know where Mr Farage’s ancestors were between 1914 and 1918, but he would do well to revisit the history of that period. Fomenting distrust can so easily lead to hatred.

The Armistice anniversary in 2018 may have more positive messages, but I agree with my noble friend Lord Cope that it also has some hidden dangers that we should remember, in the form of the Versailles peace treaty of the following year. We must also recall that only a generation later another ghastly but surely more justified war became unstoppable. The lessons for 2014, 2018—even 2019—for us all must surely be that the price of peace is eternal vigilance.

20:56

[Lord Sheikh]

My Lords, I pay particular tribute to the contribution of our Indian soldiers during the First World War, as the significant part they played is not widely acknowledged. This is of personal significance to me as my grandfather served in the Indian Expeditionary Force E in Palestine. India raised the world’s largest volunteer army of 1.5 million during the First World War. They provided crucial support to our expeditionary forces and fought directly alongside British troops in various battles which took place in Europe, Africa and the Middle East.

Indian contributions were not just confined to the Army; they also served in the Royal Indian Marines, Indian merchant services and in the Army nursing units. Indian troops were awarded more than 9,200 decorations, including 11 Victoria Crosses. The first Indian to be awarded a Victoria Cross was Sepoy Khudadad Khan, who fought in Belgium in 1914. He was in the 129th Duke of Connaught’s Own Baluchis regiment during that period.

More than 74,000 Indian troops were killed or declared missing in action. A memorial site called the Chattri exists on the South Downs at Patcham, which commemorates the Indian soldiers who gave their lives during the First World War. In particular, it is associated with 53 Hindu and Sikh soldiers whose remains were cremated at that very spot, and a memorial service is held there every year.

The commitment of these brave men to the war effort often emerged from a strong sense of personal duty to the Empire. They felt honour in fighting for their King, and it was this sense of loyalty and dedication that endeared them to many of their British comrades.

I have long advocated the need for an emphasis on what we share in maintaining a stable and successful multicultural society. There can be few things more unifying than honouring the sacrifices which our British and Indian ancestors made, fighting and dying together 100 years ago. Finally, I ask that we consider acknowledging the contribution made by Indians in the First World War during the commemoration next year.

20:59

[Lord Jones]

My Lords, I thank my noble friend for the debate, and my noble friend Lord Maxton for his pertinent speech. Here today in our safe, gilded, gothic palace, one can only be humbled and astounded by the loyalty, gallantry and resilience of Britain’s World War 1 regiments, of her naval fleet, of the Royal Flying Corps and the army of resourceful women who sustained British industrial production.

I have attended moving remembrance events at our village high school in Hawarden—Gladstone’s Hawarden. The students gave a lead of compelling dignity and sincerity, quoting from the novel All Quiet on the Western Front, reading World War 1 poetry, playing ancient films and offering the simplest of prayers. I hope the Department for Culture, Media and Sport will consult with our high schools concerning commemoration. They have a lot to offer.

Erich Maria Remarque’s novel is the story of a lost generation, of a modern and mechanised war. It is about terror—either waiting for death or trying desperately to avoid it, even if it means killing a complete stranger to avoid it. It is a depiction of the terror of heavy shelling, of losing a leg, of crawling blinded into No Man’s Land, and of being gassed. It is about the stench, the filth, the mud, the vermin and the blood and bone of all-out war. I just hope that the 2014 commemoration will ultimately be a hymn of praise for that war’s poor bloody infantry.

21:01

[Baroness Flather]

My Lords, I thank the noble Lord, Lord Clark of Windermere, for giving me this opportunity to say a few personal words about 1914. When I was Mayor of Windsor, I had to lay a wreath on Remembrance Sunday. On that occasion, I was asked by a councillor, “Does Remembrance Sunday mean anything to you?”. That is my point: there are still educated people in this country who do not realise how much we Indians did in the First World War.

It was a horrible shock to me because my father was a student in Ireland at that time; he was at King’s Inns. Gandhiji said that Indian students could help the war effort, but should not kill. So he joined up—he volunteered—as a stretcher-bearer, and there I was being asked if Remembrance Sunday meant anything to me. It was a heart-rending moment to think that all those sacrifices and all those people who had come here had got lost in the mists of time. Nobody had remembered them.

It is also a good time to remember that Britain did not have a standing army when the war started. It was the British Expeditionary Force that went to France and it was a standing army of 150,000 from India that came over in ships to help in France. They came in clothing that was suitable for warm climates, not for the November climate in France. Indians had a very hard time in the First World War. They had a hard time with the food; they had a hard time with clothing and they had a hard time with the climate, but they were still, as has already been said, 1.5 million volunteers. We must always remember that they were volunteers.

I have tried my very best—without success—to get something about the Indian efforts in the two world wars into the curriculum. I hope that next year, with the help of your Lordships, we will have that in the curriculum. After all, this is why so many people from the subcontinent are here; it is because of the time that so many of their ancestors spent in the two world wars. I hope that something important will happen and that we will get some general acknowledgment—not just acknowledgment from those who know, but acknowledgment from those who do not know and do not wish to know—that yes, the Indians were there and fought bravely. My father, who was a student, was a stretcher bearer, which is a horrible job because you are always under fire. We need to remember everyone. Indians comprised the second largest number of war dead by nationality in the two world wars.

21:05

[Lord Bates]

My Lords, my desire to contribute to this debate arose originally from a wish to ensure that we focused entirely on the brutality and evil of warfare, particularly that of the First World War. In historical terms, it may be judged a war of choice, but the appalling nature of the vindictive Treaty of Versailles settlement gave rise to a much greater war, which became one of necessity. However, that point has already been made eloquently by the noble Lord, Lord Clark, who introduced this debate so powerfully. I associate myself very much with the contributions of the noble Viscount, Lord Colville, and the noble Lords, Lord Tyler and Lord Jones, who talked about the evil of warfare. That point is illustrated by the 16 million who died in the First World War, 1 million of whom came from this country, and one of whom was my great-grandfather.

Eighteen months ago, I walked the full length of the Western Front and a little further and was shocked by the little Portland stone headstones set up by the Commonwealth War Graves Commission. I ended up in Tyne Cot, the largest cemetery. The scale of the cemetery was designed by its architects to shock as it reflected the scale of the losses suffered, and it did so. On the wall were inscribed the words of a not inconsequential person: that is, King George V, with which I will close. He said, in opening the ceremony:

“We can truly say that the whole circuit of the earth is girdled with the graves of our dead. In the course of my pilgrimage, I have many times asked myself whether there can be more potent advocates of peace upon Earth through the years to come, than this massed multitude of silent witnesses to the desolation of war”.

21:07

[Lord Faulkner of Worcester]

My Lords, the whole House is indebted to my noble friend Lord Clark of Windermere for securing this debate. He deserves the congratulations of everyone who has spoken for the way in which he introduced it. I start by declaring interests as a member of the Government’s advisory board on the World War 1 centenary commemoration, a member of the Mayor of Worcester’s First World War centenary group and chairman of the All-Party War Heritage Group, in which capacity I first raised the need for the Government to be prepared for the centenary back in March 2011.

This evening I want to express my support for the way the Government are approaching this. In my view, the combination of school battlefield visits, national events, the enhancement of the Imperial War Museum, the active involvement of the Commonwealth War Graves Commission and the encouragement of local initiatives is absolutely right. I am happy to pay my tribute to the Prime Minister’s special representative, Dr Andy Murrison, for the trouble he has taken to include as many organisations and individuals as possible in the plans to commemorate the centenary. I look forward to the second meeting of the Government’s advisory board on 20 March and am very pleased to see in the Chamber the noble Lord, Lord Wallace of Saltaire, who serves on that board with me.

In Worcester, each year we commemorate the bravery of the Second Battalion of the Worcestershire Regiment which held the line at the battle of Gheluvelt on 31 October 1914 as part of the first battle of Ypres. It is not surprising that the events which the mayor is organising for the centenary as a whole are extensive. They will particularly involve young people, special exhibitions, displays of memorabilia, events at museums, tours, self-guided trails, work with schools, interpretation and restoration of war memorials. I was very pleased to hear the contribution by the noble Lord, Lord Cope, who has done so much work on drawing to our attention the importance of war memorials and their need to be looked after properly. There will also be some theatrical and musical events. Some of your Lordships may not be aware that Vesta Tilley was a Worcester girl and there will be a celebration devoted to her music. We are prepared to forgive the fact that she later went on to become the wife of a Conservative MP.

To do the job properly, it is important that our Heritage Lottery Fund application succeeds, so we await with great interest the publication of the HLF’s guidance on the new First World War grants programme when that comes out in May. One initiative that I hope will find favour is for direct descendants of World War 1 veterans to be able to parade wearing their ancestors’ campaign medals. My grandson would love to have the chance to wear his great grandfather’s medals and honour his memory as some part of the commemoration between 2014 and 2018.

21:10

[Lord Black of Brentwood]

My Lords, I declare an interest as a trustee of the Imperial War Museum and its foundation. A leader in the Times last week about the history curriculum noted how, at the conclusion of Alan Bennett’s play, “History Boys”, the inspirational teacher offers the departing pupils his most important piece of advice: “Pass it on”. Quite so.

My grandfather talked to me about the First World War, when he built ships on the Clyde, and then my father, a veteran of Anzio, took me round the Imperial War Museum and told his story, rooted in the objects there: the tanks, planes, guns and bombs. He passed on his personal story through the mementoes of the past, stored for all time in a great British institution.

I am probably the last of that generation who had the privilege, and that is what it was, to hear at first hand from the combatants of those wars. Soon there will be no one left to link the future to the past. No one to “pass it on”.

That is what makes the institutions which maintain the physical records of those conflicts so vital, among which the IWM, established in 1917 when the First World War was at its height, is paramount. Grandparents and parents may be gone, but future generations can still see in the IWM’s galleries the stories of the causes, course and consequences of total war.

Given the importance of the IWM, the Government are to be congratulated on making a significant contribution to the museum for the renovation of its First World War galleries in a way which will make them intelligible and accessible to future generations.

There have been contributions from many philanthropists, including Lord Rothermere, whose family in the 1930s donated to the museum the building in which the IWM is now housed. They will make possible the opening of new galleries that offer a world-class experience for more than 1.3 million visitors a year, telling the story of our country’s role in the First World War, and of the extraordinary contribution of Commonwealth countries. I can assure the noble Lord, Lord Bilimoria, and the noble Baroness, Lady Flather, that the vital role of India will be an absolutely central part of that.

It is not only within the museum buildings that the public can engage with this landmark anniversary. The Centenary Partnership, led by the IWM will bring together more than 850 partners who will deliver an international programme of events across the UK and internationally, including, vitally, a digital platform to promote a permanent legacy.

The centenary of the outbreak of the First World War is a moment of sombre reflection, of memories passed on and of hope and wonder at many people’s strength of spirit across the globe. I would ask my noble friend to ensure that our national institutions, which are at the centre of the centenary commemorations, continue to be nurtured and valued in a way in which those who made the ultimate sacrifice would be proud.

21:13

[Lord Ribeiro]

My Lords, I thank the noble Lord, Lord Clark, for introducing this debate and for the opportunity to speak in the gap. The Royal Army Medical Corps is the second highest corps to hold a VC. It has 31 VCs awarded to 29 men. The significance of that is that only three double-VCs have ever been awarded and two of those were to medical men.

The first was given to Captain Noel Chavasse, the son of the Bishop of Liverpool. He died, as was commented afterwards, “a hero among heroes”, and was probably one of the bravest people in the First World War in that medical capacity. Doctors, after all, are non-combatants and, during the campaign, he won an MC in 1915 and his first VC in 1916 by going out to tend the wounded in no-man’s land. He carried on the next day and, despite shrapnel injuries, brought back 20 men whom he saved. He was given a VC by the King for that action. Sadly, a year later at Passchendaele, he carried out a similar courageous act and, this time, having received a shrapnel injury to his abdomen, crawled back to his trenches and died of his wounds. He was given a second VC for that. I have visited his graveside, and he has the only tomb with a double VC mentioned on it.

The second medical person was Lieutenant Colonel Arthur Martin-Leake, a surgeon. He got his first VC in the Boer War and the second in the First World War, which he survived. The third person whom I should like to remember, and I am wearing the tie of Middlesex Hospital, was a student there called Captain Fox-Russell, who also received a VC during the First World War, posthumously.

I make mention of these medical men because I think that I am the only doctor in the House this evening, and we would be remiss if we did not appreciate and recognise the contribution that medical men make in wartime—particularly the terrible losses that they sustained in the First World War.

21:16

[Baroness Jones of Whitchurch]

My Lords, I thank my noble friend Lord Clark for his powerful introduction and for initiating what has proved to be a moving, thoughtful and well informed debate. I cannot hope to do justice to the many wise points that have been made and, in the short time available, I shall therefore make four quick points.

First, while it is absolutely right that we should mark the centenary of the war, does the Minister agree that it is also imperative that we get the tone and language right? We should not, for example, allow the events to be commandeered to become a continuation of the jubilee and Olympic celebrations. This is about something much darker. The emphasis should be on understanding and reflecting on the lessons from the war.

Secondly, the most interesting stories are the intensely human ones—from the ferocious political arguments among our leaders and within the political parties to the wave of fervent patriotism that led a generation of young people to volunteer; and to the misjudgments of the military leaders that lead to the ultimate carnage. Does the Minister therefore agree that we need to find a way to shine a light on those human judgments and failings without taking anything away from the bravery and sacrifice of the million or more Britons who died on the battlefields, as well as those international soldiers who fought bravely alongside them. I also share my noble friend Lord Maxton’s plea that the honourable and equally brave role of conscientious objectors should be acknowledged in that regard.

Thirdly, does the Minister agree that we should pay particular respect to the artists and war poets who, for the first time in history, really shaped our understanding of war and the way that it is remembered, and the horror that is involved? Finally, how do the Government intend to pick up the points made by a number of colleagues around the Chamber on the contribution of women to the war effort, which, as we have heard, laid the way to universal suffrage and helped to shape our modern democracy?

These, among many issues raised today, are why we welcome the emphasis on creating an educational legacy to enable young people to study and visit the battlefields and consider the impact on their local communities. For many, it will be a new and shocking story from which a shared experience and understanding will grow. Fresh thinking, imagination and a debate on the nature of patriotism will all have a role in this regard. I was also interested in the proposal of the noble Viscount, Lord Colville, for a debate on when it is ever right to go to war. I should like such a debate to take place also as part of the commemoration.

In this context, we hope the commemoration will be dominated by an emphasis on reflection, learning and a sombre determination that we will never allow young lives to be sacrificed on such a scale again.

21:19

[Lord Gardiner of Kimble]

My Lords, I add my own thanks to the noble Lord, Lord Clark of Windermere, for securing this debate and for providing the opportunity to set out further the Government’s plans. I have listened carefully to what noble Lords have said and I apologise in advance if, given the time available, I am not in a position to respond as fully as I would like.

The First World War is integral to our history and the Government are committed to commemorating its centenary appropriately. I very much agree with the points that the noble Baroness, Lady Jones of Whitchurch, the noble Lord, Lord Clark of Windermere, and my noble friend Lord Tyler made regarding tone. That is extremely important.

The scale was overwhelming with more than 16.5 million deaths, military and civilian. One and a quarter million were from the United Kingdom and what was then the British Empire alone. Remembrance lies at the heart of our plans both for those who died and for those who returned with physical and mental scars, as well as many others affected, most notably the large number of war widows. Indeed, I wish to refer to the moving speech of my noble friend Lady Fookes in that regard.

In addition, we seek to secure an enduring legacy from the centenary. Youth and education are also key themes. I am mindful of the points made by the noble Baroness, Lady Andrews, concerning education and heritage—a point mentioned also by the noble Lord, Lord Watson of Invergowrie. Indeed, we also heard thoughts on legacy from the noble Viscount, Lord Colville of Culross. I am also mindful of all that my noble friend Lord Cormack suggested for events and the participation of young people.

The Prime Minister announced a £53 million programme of funded activity, including more than £5 million for school visits to the battlefields, at least £6 million from the Heritage Lottery Fund to support community projects, and national events to commemorate key moments—the first day of the war, the Battle of the Somme and Armistice Day in 2018—as well as recognising the battles of Jutland and Passchendaele and the Gallipoli landings. The programme also includes a £35 million project to refurbish the Imperial War Museum’s First World War Galleries, which will provide a highly visible centrepiece. I agree with my noble friend Lord Black of Brentwood: the museum is surely to be nurtured and valued for the future. The new galleries will open next year.

It was clear from my recent meeting with the museum’s director-general, Diane Lees, that the museum is already actively supporting a wide range of activity across the UK. Its centenary partnership of almost 900 members across 25 countries brings together a programme of cultural events and activities, and digital platforms, which will enable millions of people across the world to benefit from the museum’s information and expertise and to discover more about life in the First World War. The noble Lord, Lord Jones, spoke powerfully about what this dreadful war really was like at the front.

The Heritage Lottery Fund’s new grants programme of at least £6 million, to be launched later this year, will encourage young people to learn more about their local First World War heritage. The reference by the noble Lord, Lord Clark of Windermere, to the need for local events and the challenge from the noble Lord, Lord Foulkes, concerning imaginative events very much struck home with me. I assure the noble Lord that they will be imaginative. I think that there is a lot more going on than your Lordships are aware of and indeed than I knew about before my many briefings. It is important that more people know about them.

The fund has also provided £10 million for centenary-related projects across the United Kingdom. These include £1 million for the restoration of the Belfast-berthed HMS “Caroline”, the last warship of the Battle of Jutland; a development grant award towards a heritage and interpretative centre on the Welsh bard, Hedd Wyn, who was killed in 1917; and support to Edinburgh Napier University to make its war poets collection publicly accessible. The noble Baroness, Lady Jones of Whitchurch, asked about artists and war poets. Their contribution has been profound and I would add playwrights to that list too.

No one can fail to be moved by the large number of war memorials in every corner of the country. The noble Lord, Lord Clark of Windermere, referred to only 50 villages in which there was not a war memorial. My noble friend Lord Cope spoke movingly about war memorials and referred to the need to protect them. My noble friend Lord Shipley spoke about the responsibility for war memorials. A number of grant schemes are available to support their maintenance and conservation and they must be cherished for the future. My noble friend Lord Ribeiro spoke of the bravery of all in the medical sector and they surely must be recognised, from doctors and nurses to ambulance drivers and all manner of people in that sector who were so brave and did so much.

While the Government are leading the nation in appropriate commemoration, we also support the participation of local communities and interests. I was mindful of the references by the noble Lord, Lord Foulkes, to his local football club and the moving passage about its history. There is room for everyone and every interest in this programme, with no single narrative but the opportunity for people to make their own discoveries and form their own views. This is the best way to shine a light on the intensely human stories, if I may use the words of the noble Baroness, Lady Jones of Whitchurch. I respect the points made by the noble Lord, Lord Maxton, in the context of his own family tradition.

We are marking a war that touched every part of Britain and all its people. The role of women in our society was transformed. They flocked to the factories, bus depots and farms to undertake the work of the departing men, and to care for the wounded. The noble Baroness, Lady Jones of Whitchurch, and my noble friends Lady Fookes and Lady Bonham-Carter, referred to the invaluable contribution that women made to the war effort. I reassure my noble friend Lady Fookes that they will be right in the midst of the commemoration. The Imperial War Museum’s director-general informed me that 8,000 women from Australia volunteered for munitions work here. The war changed Britain. The centenary will recognise the social and cultural as well as the military impact.

The noble Lord, Lord Watson, referred to the considerable number and high proportion of deaths from Scotland. I also echo the powerful commentary from my noble friend Lord Lexden about the contribution by Irishmen, both north and south. The Administrations in Belfast and Dublin are working together on fitting commemorations and continuing reconciliation. We will also not forget that this was a war involving over 30 countries across the world, and the enormous contribution made by Commonwealth countries. I assure the noble Lord, Lord Bilimoria, of our eternal gratitude. The nearly 230,000 deaths among military personnel from countries now within the Commonwealth are well documented. We are working closely with our Commonwealth partners to ensure that we recognise the contributions made by, for example, the Anzacs at Gallipoli, the Indian cavalry and the South African forces on the Somme, the Canadian Corps at Passchendaele, the British West India Regiment in Palestine and many more in theatres of war around the world.

The noble Baroness, Lady Flather, spoke of 1.5 million volunteers from India; my noble friend Lord Sheikh spoke of his grandfather serving in Palestine and the immense contribution made by troops from India. These should be acknowledged and more is surely due. My noble friend Lord Bates referred to the Commonwealth War Graves Commission. It is our invaluable partner, funded proportionately in relation to war casualties by its member states. Our Government provide some 78% of the commission’s funding. Many of their immaculate cemeteries will form a poignant backdrop to centenary events around the world and they are providing wise counsel on matters of sensitivity and tone. Beyond the Commonwealth, we are in dialogue with the representatives of more than 20 countries from both sides of the first war, acknowledging that the loss and suffering recognised no national boundaries. I think that my noble friend Lady Bonham-Carter reminded us all of that.

In driving forward the commemoration, government thinking is greatly enriched by the expert advisory group. I must record our gratitude to those present tonight—my noble friend Lord Wallace of Saltaire and the noble Lord, Lord Faulkner of Worcester. That group has been chosen to represent a wide range of expertise and specialism with many other noble Lords present. We welcome the lively and vibrant perspectives that they bring. The group is chaired by the Secretary of State, working with the Prime Minister’s special adviser, Dr Murrison.

While DCMS leads the programme for the Government, it is a truly cross-government effort. A professional team of officials from a number of departments is working together to co-ordinate it. Indeed, the noble Lord, Lord Foulkes, referred to co-ordination and, having seen what I have now been briefed on, I really hope that he will not be disappointed.

The Government are working hard to ensure a commemoration that is wide in its focus, inclusive in its nature and appropriate for an event of almost unparalleled importance. We will shortly announce our plans for the opening day of the centenary on 4 August 2014, which will reflect our themes of remembrance, youth and education. There will be a number of announcements thereafter as our plans unfold. The Secretary of State and I are committed to keeping your Lordships fully informed.

It is telling that the Imperial War Museum’s conception was during, not after, the First World War. At the museum’s opening in 1920, Sir Alfred Mond described it as,

“not a monument of military glory, but a record of toil and sacrifice”.

I can think of no better words to guide our work today.

House adjourned at 9.32 pm.