House of Lords
Infrastructure: Expenditure
(11 years, 8 months ago)
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Lord Hollick
To ask Her Majesty’s Government how much has been spent on infrastructure projects in the current financial year, and how that figure compares with that in the previous financial year.
The Commercial Secretary to the Treasury (Lord Deighton)
My Lords, we are spending more on infrastructure projects this year. Capital spending by the departments responsible for economic infrastructure—DfT, DECC and Defra—is increasing. The transport budget, for example, rises from £7.7 billion last year to £8 billion this year, then £8.7 billion next year and £8.9 billion in 2014-15, which is more than at any point under the last Government. This has been possible because the Government increased infrastructure spending by £10 billion over the past two Autumn Statements, increases which the Budget committed to making permanent, with a further £3 billion a year from 2015-16.
Lord Hollick
I thank the Minister for that Answer. However, the Office for Budget Responsibility reported a rather different situation last week, when it announced that public sector net investment would fall by 34%, from £38.7 billion in 2010-11 to an estimated £25.5 billion in the current year, 2012-13. The OBR also forecast that, taking into account all the measures so far announced, including those announced in the Budget last week, there would be zero growth in infrastructure spend between now and 2017-18. Will the Minister please explain why these measures have failed, and continue to fail, to boost overall infrastructure investment, and which additional measures he plans to introduce to improve the dire forecast for the next five years?
Lord Deighton
My Lords, first, it is necessary to clear up the numbers. There is a significant difference between public investment numbers and investment in infrastructure. Public investment includes huge investments in health and in defence, so there is a significant difference there. Also, if you look at the national infrastructure plan, you see that approximately 80% of the investment that we expect over the next 15 years in fact comes from the private markets and not from public capital expenditure.
Lord Flight
My Lords, the national infrastructure plan has identified some £200 billion of energy infrastructure investment and £200 billion of communication and transport infrastructure investment. What proportion of that total does the Minister estimate might be under way by the end of five years, and to what extent are any delays caused not by the absence of finance—where sovereign funds and others are willing to put up the money—but by planning and environmental legal constraints in this country?
Lord Deighton
I thank my noble friend for that question, which focuses us on the issues to do with accelerating the delivery of this very important programme. With respect to the proportion that will be under way within this Parliament, this Government have focused activity on the top 40 programmes and projects, which accounts for about £200 billion of the £400 billion my noble friend refers to. Approximately 20% of those projects are currently in construction, and we would expect that proportion, by 2015-16 and the end of this Parliament, to be approximately 50%. There is no question but that the gate that most constrains our ability to accelerate the stream of projects is to do with the variety of planning regulations that surround any major public infrastructure investment.
Lord Soley
Do I take it from the Minister’s enthusiasm for private sector investment in infrastructure, with which I wholly agree, that he supports the expansion of Heathrow Airport?
Lord Deighton
If I may say, my Lords, those are two quite separate questions. I am very enthusiastic about private sector investment. Infrastructure investments lend themselves to financing in the private markets because they generate a cash flow that can repay those investments. The question about Heathrow Airport is an entirely separate one, although I accept that airports are a particularly attractive investment proposition for the private markets.
Lord Barnett
My Lords, is not the difference between the figures that he quoted and those quoted by my noble friend Lord Hollick that the previous figures were allocated but not actually spent?
Lord Deighton
I bow to the noble Lord’s extensive experience in managing public expenditure. There is absolutely a distinction between what is allocated and what is spent. There is a small additional amount this year that is underspent, but it is in the region of £2 billion, which is consistent with previous years. I agree that that is part of the difference.
Lord Adonis
My Lords, the Budget document says that the Government will create an enhanced cadre of commercial specialists in Infrastructure UK to promote infrastructure delivery. How many such specialists are there now, how many will be in the enhanced cadre and when will these specialists be appointed?
Lord Deighton
I thank the noble Lord for drawing attention to an important part of our intervention to improve the public sector’s delivery of these crucial projects. On the question of the amount of resources required, we are not simply discussing the resources in Infrastructure UK here; we are discussing the resources right across government, particularly in the government departments that are charged with delivering infrastructure: the DfT and DECC being the two primary examples. Between now and June, we will work precisely to define their requirements, based on the project load that they are managing, and what they ought to be staffed with in order to make that happen. That gap is thus being defined, and we have to assess what is in the departments as well as what is in Infrastructure UK in order to determine how to fill in that difference.
Lord Forsyth of Drumlean
My Lords, will my noble friend confirm that had he continued with Alistair Darling’s plans for capital expenditure, capital expenditure would have been severely reduced?
Lord Deighton
My noble friend is precisely right that the restoration to capital expenditure which this Government have made through the 2010 spending round, the two Autumn Statements and the recent Budget, has restored capital expenditure levels to considerably above the previous Government’s plan.
Lord Berkeley
My Lords, can the Minister clarify how much of the amount he quoted in his original Answer is in respect of Network Rail and how much is capital expenditure, whether it is considered to be in the private or public sector, and whether or not it was financed by government guarantee?
Lord Deighton
The plan for Network Rail is included under the high-level output specification, which is a £9 billion plan from 2014 to 2019. Of that £9.4 billion, approximately £4.2 billion has been added during the tenure of this Government.
Lord West of Spithead
My Lords, the Minister mentioned defence infrastructure. Does he not agree that it would be better over the next eight years to spend money on building warships in our warship yards rather than spending money in those yards not to build warships, which is what the plan appears to be?
Lord Deighton
I congratulate the noble Lord on being able to take the Question into the sphere of defence expenditure, which is not my expertise or my brief. One thing that I am working on in all our infrastructure investments is to make sure that they are highly productive. Spending the money that we are allocating well is probably the most effective thing we can do over the next three years.
Prisons: Suicide
(11 years, 8 months ago)
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Lord Sheldon
To ask Her Majesty’s Government how many people have committed suicide in prisons since January 2000.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the figures we hold on suicide are classified within the data on self-inflicted deaths. There were 960 self-inflicted deaths in prison custody between January 2000 and September 2012. Annual numbers have reduced from 92 per year in 2007 to 57 in 2011.
Lord Sheldon
My Lords, by last week there had been 982 suicides since 2000, including 15 children under the age of 18. Staff in prisons try to reduce those deaths but suicides continue.
Lord McNally
My Lords, inevitably it is true that suicides continue. But there has also been a concerted effort by the prison authorities and those with responsibility for the youth estate to try to avoid as far as possible these dreadful circumstances—dreadful for the prison staff who have to deal with them and dreadful for the families who have lost loved ones. The noble Lord makes the point that suicides continue. I would say that that is against a background of great efforts by the authorities to try to continue the welcome reduction of recent years.
Baroness Linklater of Butterstone
My Lords, any suicide in custody is terrible and a cause for real concern, but when children commit suicide it is an absolute tragedy. Three children have died in the past 18 months or so, as recently reported by the Prisons and Probation Ombudsman in Wetherby, Hindley and Cookham Wood YOIs. Can my noble friend the Minister please tell the House what action the Government are now going to take to ensure that these exceptionally vulnerable children—as these were—are not held in young offender institutions but in facilities that are better suited to meet their very particular and challenging needs?
Lord McNally
My Lords, my noble friend is right. There have been three recent deaths—the first in youth custody for more than five years, so it is important to keep these numbers in perspective. The Youth Justice Board—YJB—which is responsible for the placement of young people in custody, is working closely with the Department of Health in the development of the comprehensive health assessment tool to screen and assess the needs of young people aged under 18 on reception. The Department of Health has developed a youth justice health and well-being needs assessment toolkit, which is now available to help with the planning and commissioning of health services for young people across the justice system. I should also add that the three recent deaths have been investigated by the Prisons and Probation Ombudsman.
Baroness Finlay of Llandaff
Since the instance of two or more mental disorders among the prison population is estimated to be 15 times that of the rest of the population and up to 35-fold higher in female prisoners, despite the assessment that the Minister referred to and despite the fall in suicides, there remains a major treatment problem for prisoners with mental health disorders, particularly when they move around and do not have stable placements. How is this going to be addressed by the Ministry of Justice and how will the changes to the NHS affect the provision of mental health services in prisons?
Lord McNally
The noble Baroness is correct. One of the abiding problems of our Prison Service is the need of so many prisoners in the criminal justice system for mental health support. We are talking with the Department of Health to make sure that we can assess prisoners and that those who are in need of mental health support are given it. Since 2007 all establishments operate an individually focused care planning system for prisoners identified as being at risk, the key benefits of which include an initial assessment and faster first response, the provision of flexible individual accountable care, better sharing of information and a multidisciplinary approach. I do not underestimate the fact—
Lord McNally
I know it is too long but it is worth getting on the record that the problems of mental health within the prison population remain and we need a more holistic approach to solving them.
Lord Elton
My Lords, my noble friend referred to prisoners identified as being at risk of suicide. Can he tell us how many of those there are currently, how many are identified as having mental health problems of any sort, and how many staff there are who are qualified to deal with their mental health illnesses while they are in prison?
Lord McNally
On the latter issue I will have to write to the noble Lord. On any one day in the Prison Service it is estimated that there are about 1,500 prisoners who are under care and supervision out of concern for the danger of self-harm or worse. I will have to write to the noble Lord about the actual number with mental health issues.
Lord Harris of Haringey
It must be this side’s turn eventually. I declare an interest as chair of the Independent Advisory Panel on Deaths in Custody. Given the importance of properly investigating the deaths, particularly of young people but of anyone who dies unexpectedly in prison, is the Minister satisfied with the level of resources available to the Prisons and Probation Ombudsman to carry out their function and, secondly, does he not agree that it is time that the Prisons and Probation Ombudsman was made statutorily independent of the Ministry of Justice and the Prison Service?
Lord McNally
On that latter point I will have to take advice. I pay tribute to the noble Lord for his appointment to the independent advisory panel. It was set up in 2008 and its shared purpose is to bring about a reduction in the number and rate of deaths in all forms of state custody and to share the lessons that can be learnt from these deaths. The ministerial board incorporates senior decision-makers, experts and practitioners in the field. This extended cross-section approach to deaths in custody allows for better learning and sharing of lessons across the sector.
House of Lords: Debates
(11 years, 8 months ago)
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Baroness Miller of Chilthorne Domer
To ask the Leader of the House whether he will bring forward proposals to encourage greater interactivity of debate, and to allow time for interventions, in time-limited debates in the House and Grand Committee.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
My Lords, our existing procedures allow for a degree of spontaneity. Interventions are permitted in moderation and we allow speakers in the gap. Most importantly, the Companion discourages Members from reading their speeches. Indeed, your Lordships have resolved that it is alien to the custom of this House. Not reading speeches would certainly encourage greater interactivity of debate.
Baroness Miller of Chilthorne Domer
My Lords, I warmly thank my noble friend for his positive Answer. I am sure that he will have heard, as I have, concerns from many Members of your Lordships’ House that debate is in fact not living up to its name, partly for the reasons that he has outlined. Given that the quality of contributions remains extremely high, so the problem is not quality but rather interactivity, will he consider reconvening the Leader’s Group on Working Practices to look at this issue in depth before we get much further down the road of more introductions?
Lord Hill of Oareford
As I have said, there are a number of ways in which we can all try to make it easier for debates to be more spontaneous. If people are not stuck to a script, they are more likely to listen to the debate that is going on and respond to the points that are raised in it. It is open to any Member to take suggestions forward to the Procedure Committee—for example, as to how one might make improvements in this area—and I know that all noble Lords are concerned to ensure that the quality of our debates is as high as it possibly can be.
Lord Hughes of Woodside
My Lords, is it not the number of speakers in particular debates that causes the problem? Indeed, in some debates the time allocated is three minutes, an unrealistic time in which to expect someone to give way in a debate. Will the Leader of the House look at the possibility of limiting the number of speakers so that the minimum amount of time available was between seven and 10 minutes?
Lord Hill of Oareford
It would of course be open to the House, if it put proposals to the Procedure Committee, to decide that one way of addressing the problem that the noble Lord raises would be a limit on the number of speakers. As with so many things in this House, there is another side to the argument: if one had a fixed limit and the first noble Lords who put their names down to take part all had the same view, we would not have much of a debate. As often, then, this issue is not straightforward, but that is the kind of thing that one could look at. It is also true that there are a number of debates where we are short on speakers, so we have the problem of undersubscription as well as oversubscription.
Lord Jenkin of Roding
My Lords, I hope this will not be regarded as a breach of our convention that we do not criticise the other place, but I express the hope that we do not try to go down the road that they have increasingly followed in recent years where a debate turns into little more than a conversation between the Minister who is trying to make a speech and Back-Benchers who are incessantly interrupting.
Lord Jenkin of Roding
That has seriously reduced the quality of debate at the other end of the Palace.
Lord Hill of Oareford
Perhaps that sound is someone ringing from another place with a view on the quality of our debates. The response that the House gave to the comments made by my noble friend Lord Jenkin reminds us that we do not want slavishly to follow examples in another place.
Lord Howarth of Newport
My Lords, if there were to be a minimum ration of, say, five minutes for each speech, surely it would not matter very much if from time to time debates ran on a little longer. That would facilitate the kind of more spontaneous and lively debating that the noble Baroness, Lady Miller, rightly calls for while ending what is, frankly, the demeaning practice of limiting the time for noble Lords’ speeches sometimes to three minutes, and sometimes to two minutes or even one.
Lord Hill of Oareford
The whole House has taken a view about time-limited debates. The advantage of them is that noble Lords know how long they have to speak, when the debate is going to take place and so on. The ingenious suggestion from the noble Lord, Lord Howarth, about allowing things to run on would effectively take time from someone else, and they would have an equally strong view the other way. These are not straightforward issues. One point worth making generally is that the amount of time in the previous Session set aside for debates was actually greater than that in the previous three Sessions. The noble Lord will probably know that I have brought forward proposals to the Procedure Committee to try to increase opportunities for debate and, importantly, for topical debates in particular because I know that there is widespread demand for that opportunity.
Lord Cormack
My Lords, although I strongly agree with what my noble friend Lord Jenkin of Roding said, perhaps there is a case for allowing some “injury time” so that interventions can be taken during time-limited speeches. We could profitably adopt that proposal, and I hope that my noble friend will be prepared to consider it.
Lord Hill of Oareford
It all comes back to the view the House has taken about the length of time it wants to set aside for particular kinds of debate. The only way of doing that formally, as my noble friend is suggesting, would be to have a cap of the sort that the noble Lord, Lord Hughes, suggested.
UK: Poverty
(11 years, 8 months ago)
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Baroness Seccombe
To ask Her Majesty’s Government what is their definition of poverty in the United Kingdom.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, the Government keep track of their progress on reducing poverty using a range of measures in their annual publication Households Below Average Income. They include the below 60% of median income measure, which is used internationally. However, a purely income-based measure of poverty is too narrow and does not capture progress on solving the underlying causes of poverty, such as family breakdown or benefit dependency. The previous Government spent £170 billion on tax credits yet missed their target to halve child poverty.
Baroness Seccombe
My Lords, I am sure that if each of us were asked “What is poverty?” we would have a variety of definitions, so I am grateful to my noble friend for answering the Question as he did. More importantly, can he tell us what measures the Government have taken to help working families and those who through ill health and disability are unable to sustain themselves?
Lord Freud
My Lords, we provide very significant support to families in need. Working-age benefits stood at £96 billion in 2010 and have been moving up faster than average earnings. Disability payments now stand at 2.4% of GDP, which is much higher than the norm in the EU where the average is 1.4%. We are designing universal credit to target our support efficiently on the poorest families.
Lord McKenzie of Luton
My Lords, would the Minister include in his definition of poverty circumstances where families have routinely to resort to food banks to survive?
Lord Freud
My Lords, we have a benefits system that is designed to provide the basic needs of people who are poor. Clearly, there is increasing local provision of food banks. Actually, it expanded very dramatically under the previous Government. Interestingly, the really big expansion has been since September 2011 when jobcentre advisers were allowed for the first time to direct people towards them.
Lord German
My Lords, relative measures of poverty sometimes have bizarre consequences. An example has happened recently. As the economy contracted, hundreds of thousands of children were notionally lifted out of poverty. What credence does the Minister give to a better and wider form of measurement of poverty that looks at interventions and at ways of removing barriers for children, such as that proposed by Save the Children, which would allow things such as the pupil premium to be included in the measure so that we fully understand the impact that these things have on child poverty?
Lord Freud
My noble friend makes an important point. I should make it clear that I believe in the relative poverty measure, which is a way of measuring what happens over the medium-term period, although there have been some rather perverse impacts in the past couple of years in the current recession. What is really important is that we drive our attention to the underlying causes of poverty. That is what the current consultation is about. We will be reporting on how to tackle it in the spring/summer.
Baroness Farrington of Ribbleton
My Lords, the Minister has repeated an assertion that I have heard him make before. My experience, from talking to people in the clergy and social services, is that there has been a large increase in the use and availability of food banks. The Minister asserts that there has not. What is his evidence?
Lord Freud
Well, my Lords, I actually said the exact opposite. I said that there has been an increase in the use of food banks and that, indeed, there had been a large increase under the previous Government. We have since September 2011 been advising people of this local resource and other resources. We are transferring elements to the Social Fund so that local areas can create local welfare support for people who are in crisis. It is important that we have that kind of provision, either through local authorities or, indeed, through third-sector parties.
Baroness O'Cathain
My Lords, is not the use of the term “food banks” confusing to many people? They are actually temporary measures for people who are suddenly put out of work and do not have enough cash to feed children and so on. Normally, the food banks under the Trussell Trust give families food for three days while it puts them in touch with social services, charities and other organisations. If there is time, would it not be a good idea to have a full-scale debate on food banks, what they mean, how they are operated and how they should be supported?
Lord Freud
My Lords, I thank my noble friend for that. The essential point is that we are moving to local authority support for people who are in trouble as that is the best place for them to get that support. Food banks may well be part of that. One thing that local authorities are looking at is providing support in kind to people who would otherwise have taken cash. It is a more effective way of doing it. Food banks are another aspect of that.
Lord Tomlinson
Does the Minister agree that the subject about which we hear so little these days, the big society, was supposed to have helped to eradicate the problems of poverty?
Lord Freud
I am pleased to tell the noble Lord that, on the most recent figures that we have, for 2010-11, relative poverty is at its lowest level since 1986.
Guardian’s Allowance Up-rating Order 2013
(11 years, 8 months ago)
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Lord Freud
That the draft orders and regulations laid before the House on 4 and 7 February be approved.
Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.
Official Statistics Order 2013
(11 years, 8 months ago)
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Lord Wallace of Saltaire
That the draft orders and regulations laid before the House on 14 and 25 February be approved.
Relevant document: 21st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.
Welfare Benefits Up-rating Bill
(11 years, 8 months ago)
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Lord Kirkwood of Kirkhope
“Annual report to Parliament—
(1) Within a year of the passing of this Act, and annually thereafter, the Secretary of State shall publish and lay before both Houses of Parliament a report on the costs to the Exchequer arising from the provisions of this Act. (2) A report under this section shall include a comparison of the costs to the Exchequer arising from the provisions of this Act against the costs that would have arisen had each of the individual relevant sums and relevant amounts, as defined in the Schedule to this Act, been increased by a sum equivalent to the change in the general level of prices, measured by the Consumer Price Index.(3) A comparison shall include an analysis of the effect of the provisions in this Act on each of the relevant sums and relevant amounts in the Schedule.”
Lord Kirkwood of Kirkhope
My Lords, it is a pleasure to move the amendment on the Order Paper to insert a new clause after Clause 2, entitled “Annual report to Parliament”. It will give my noble friends on the Front Bench some comfort, perhaps, if I tell them that this is a probing amendment. This is a case of once bitten, twice shy.
However, it is important to spend some time reviewing the context in which the Third Reading of this important Bill takes place, particularly against the background of our not having had the advantage of having the Budget Statement available to us when we were on Report. We are now better informed in terms of the updated projections that have been done by the Office for Budget Responsibility, which inform this debate directly. I cannot resist the temptation to say to my noble friend that we are also better informed on CPI in that, as we were speaking on Report last week, the BBC was reporting that the February monthly figure for inflation had ticked up by 0.1% from 2.7% to 2.8%. Admittedly, that is two points away from the magic 3% that I was using in an amendment—as it happens, unsuccessfully—to try to get some inflation protection for people on benefits.
I mention that merely in passing. I will not go back to discussing what we did on Report because I would be out of order to do so, but it illustrates the point that inflation can be capricious. It is a difficult thing to forecast. Some commentators who know more about it than I do were saying that, for example, the recent weakness of sterling, which has dropped by 7% in recent days, increases the risk of inflation, and so does the new monetary policy framework that Mark Carney, the Governor-designate of the Bank of England, is going to work with. We therefore need to look at the Bill carefully.
This amendment is a rather clichéd parliamentary device, as an annual report to Parliament is the last thing I could get the clerks to accept as being in order. However, it gives us time to reflect on the full-blown consequences of this Bill as we launch it on to the statute book. I still have some deep concerns, which are not merely around the question of the reduced household budgets of low-income working-age families. As I said in Committee, the Bill sets a very dangerous precedent for future Governments. If you believe, as I do, in the value of social protection then implicit in that is your understanding that temporary or maybe even long-term benefit recipients are also entitled, over the longer term, to have a share in the national wealth of the country. We all know that that national wealth is stagnating and we are in difficult times; I understand that perfectly well. However, since 1992—and I stress that date, which is a long time ago—we have had the absolutely implicit foundation of an understanding across party divides: an acceptance that the uprating formula would be sacrosanct.
These are exceptional times. Certainly, if the Government had said, “For the forthcoming 12-month period, 1% is all we can afford”, as they did, I am perfectly willing to consider that. I am sure that other noble Lords are, too. On the savings in this Bill, colleagues may have an advantage over me because I am just off a train from the Siberian north and I have not had a chance to look at the new impact assessment—I assume that one exists—on the new costs of the Bill. Obviously the OBR’s estimates for inflation have changed from 2.6% and 2.2% to 2.8% and 2.4%. Again, there is an inflation uplift, which will adjust, in the Treasury’s favour, the savings that the Bill will make. The Bill covers two years of uprating but not this immediate year’s uprating, so an extra £500 million will be saved in the coming year. Of course, housing allowance, which is a different category of benefit, is not covered in the Bill so the totality of the savings is not reflected in the impact assessment, and last week’s impact assessment has been adjusted because of the OBR’s more recent and accurate estimates of inflation.
The Countess of Mar
We are at Third Reading, and the noble Lord has spoken for 16 minutes. He might believe that we have actually got the point. Is he going to be very much longer?
Lord Kirkwood of Kirkhope
No. I have two remaining points to make before I sit down. First, we have learnt over the past few days that Mr Alan Milburn, the chairman of the Social Mobility and Child Poverty Commission, has made it clear that he thinks that income is important for low-income families when trying to deal with child poverty. Finally, we need to invite the Social Security Advisory Committee to look at all this between now and July.
A lot of work needs to be done, and an annual report would help to inform that work. It is not safe to allow this Bill to continue into its later stages until we are sure that we have some way in which to track its progress and can ensure that those at the bottom of the low-income scales do not get hurt as a result of its provisions. I beg to move.
Lord King of Bridgwater
I shall intervene very briefly, supporting the point made by the noble Countess, Lady Mar. My noble friend Lord Kirkwood and I had an exchange last time on this matter, and he has made it clear once again that he does not like this Bill. I do not like it either. I do not think that any Member of this House would like to have this Bill at all, were things more normal and better than we actually find.
Since we have debated the Bill we have had a Budget and we have had Cyprus. If anyone wants to think that the situation is improving, the most significant thing in the Budget was the absolutely frank admission by the Chancellor of the very serious debt situation that we face. We now realise that it will be extremely tough to turn the ship round. Since then, we have had the comments from the rating agencies, and my noble friend may recall an intervention that he allowed me to make in his previous speech that we had better watch out for the rating agencies.
We have already heard that we are on negative watch by the other rating agencies, and that is even in our present situation. If we ally to that some recognition that this Government are not going to be able to stick even to the programme that they have proposed, if we faced a further downgrade from the rating agencies we might start to move into territory where the Government have to borrow to meet our debt at interest rates that are significantly higher. It will not then be a question of benefits being uprated by only 1%; there could be, as in other countries, significant cuts. If we get higher interest rates as well, with the impact on a huge raft of people who depend on their mortgages and who are finding it an extremely tough battle to maintain them, and with the risk of a significant increase in repossessions around the country, we will be in a very tough situation indeed.
To summarise, the purpose of my noble friend’s amendment is simply that at the end of the year we should discover how much we have saved and what the impact has been. If the Treasury is not going to do that anyway, I do not think that we need to spend a lot more time on this amendment, writing complicated additional amendments into a Bill on a matter that will surely be part of the normal purpose of government.
Lord McKenzie of Luton
My Lords, like the noble Lord, Lord Kirkwood, we have deep concerns about the Bill, certainly that it may be a precedent. We have made clear our opposition to it throughout its various stages. We believe that it is unnecessary and that it hits the poor, both those in and out of work, and will certainly increase child poverty. Sadly, the amendment before us will do nothing to help that. We could have a repeat of the debate that we have had at earlier stages, but I simply say to the noble Lord, Lord King, that one of the problems is that some of the austerity measures the Government are introducing are making debt worse, not better. To pray in aid Cyprus when talking about our situation seems extremely far-fetched.
The noble Lord, Lord Kirkwood, said that introducing such an amendment at Third Reading is a clichéd device. However, an annual review gives the Government of the day, and indeed the Opposition, a chance to take stock of how measures are working. In this case, the problem is that a 1% cut has been locked in without knowing what the effect will be. The noble Lord is right: inflation is ticking up. Therefore, even if we knew the amount that the Government will spend as a result of this measure, the locking-in will mean that it makes no difference. That is why the proposed review differs from a review, annual or otherwise, that we would normally have. We have debated this matter extensively and I have made our position very clear. However, I recognise that the House has spoken on this matter.
Lord Newby
My Lords, this amendment would require the Government to produce revised costings of this policy annually. I fully understand the inflation risk about which the noble Lord, Lord Kirkwood, is concerned. However, as I said last week, while I share his concerns about measuring the impact of government policies, I believe that additional reports on the Bill are simply not necessary. As I said last week, the Government already have comprehensive arrangements in place to report on the impacts of government policy. We publish impact assessments of every Bill, including the Exchequer impacts. These are based on the OBR forecasts available at the time.
At Budget, we publish an updated account of the Exchequer impact of any government policy that has changed due to modelling or forecast changes and has not yet been implemented. The DWP publishes benefit rates and expenditure tables of all its benefits, and we produce analysis of the cumulative impact of government policies on changes to households across the income distribution at every major fiscal event. This analysis will use updated inflation projections and will look at the cumulative impacts of all changes, rather than artificially isolating just one policy. These mechanisms go further than any Government have gone before in increasing transparency and enabling the effective scrutiny of policy-making.
Since we previously debated this matter, we have had a Budget. As the noble Lord, Lord Kirkwood, said, at Budget last week the OBR revised its forecasts for inflation slightly upwards. The forecasts increased by 0.3 percentage points for the purpose of uprating in 2014-15, and by 0.1 percentage points in 2015-16. As I said last week, it was always a possibility that the forecasts would change. Similarly, they can change again at the Autumn Statement, and again at Budget 2014. These forecasts could go up as well as down. However, Governments must make decisions based on the best forecasts available at the time. The OBR’s forecast at the Autumn Statement showed that while inflation is forecast to be above 2% in the near term, it is then forecast to fall back towards the target in the medium term. This has not changed. As I set out last week, the OBR is not alone in taking this view. The IMF, the OECD and the Bank of England all show inflation falling back to target in the medium term. Nor has the inflation target changed: it remains at 2%.
One thing that has changed since we were last in this House is the Budget announcement on public sector pay. The Budget announced that public sector pay awards will be limited to an average of up to 1% in 2015-16. This will be on top of four years of pay being either frozen or capped at 1%, which included the period when inflation was at 5.2%, far above the forecasts for the periods covered in the Bill. This is not a justification for the Bill, but it is a reminder that people face inflation risk in everyday life. The decision that the public sector should continue to face a further year of pay restraint was a difficult, but necessary, decision to support fiscal consolidation.
It is against this background that I repeat what I have said many times on the Bill: that this Government do not take decisions to find savings from welfare lightly. However, this Bill is necessary to make vital savings from welfare, to help reduce the deficit and to restore economic recovery. The Government have set out their plans for spending in advance to give confidence to the markets that we are taking the necessary tough decisions. We can do that only by using the best forecasts available at the time. These forecasts have changed, but they continue to show inflation falling back to target in the medium term. I hope I have reassured the noble Lord that the amendment is simply not necessary, and I beg him to withdraw it.
Lord Kirkwood of Kirkhope
My Lords, the House has a busy schedule for the rest of the day and, as I said earlier, I am happy to withdraw the amendment. I am grateful to colleagues who have contributed. We are all of the same mind that we need to be very careful and monitor the consequences of these Bills. The noble Lord, Lord King, is correct that the Treasury does that annually, but I will make it my own business to make sure that working-age, low-income families do not suffer more than the Government feel they will in the course of the next five years as a result of this Bill. I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
(11 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
16:47 - Division on Motion 1A - Ayes: 199 / Noes: 230 - Motion 1A disagreed.
Lord Lloyd of Berwick
My Lords, with the leave of the House, I would like to suggest that consideration of Commons Amendments 24 and 136 be postponed to another day. I hope that anything which had that effect would meet with the approval of the House and, not least, of the Minister because, as we all know, we are very pressed for time.
The purpose of these amendments is to introduce what is known as a forum bar in extradition proceedings. A forum bar, which is an additional ground on which extradition could be refused, was introduced in 2006 but it was never brought into force. The reason, as given at the time by the noble and learned Baroness, Lady Scotland—and I wish she was in her seat—was that it would have put us in breach of our bilateral treaty obligations with all our extradition partners. She was, surely, right about that. On 8 September 2010, the Home Secretary announced a review of our extradition arrangements. Sir Scott Baker, a recently retired Lord Justice, was appointed, with two colleagues, to consider the question of our extradition arrangements generally and the forum bar in particular. They produced a massive report which I have beside me here and they came down firmly against a forum bar for all the reasons set out in Part 6 of their report, which I will not repeat. They thought it was much better that, where there is a contested forum, the forum should be agreed between the prosecuting authorities in the two competing jurisdictions, not by the court in one or other of them. Sir Scott Baker’s report was published on 20 September 2011 and nothing happened until October 2012 when the Home Secretary accepted most of its recommendations.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I hesitate to interrupt the noble and learned Lord. I have moved the question that we now consider Commons amendments, which I hope the House would wish to get on with. The noble and learned Lord’s handwritten amendments have been scheduled for debate at a particular point. At that time, he can move the amendments he is speaking to or, indeed, the adjournment of the House if that is what he would wish to do. I do not believe that he reflects the sentiment of the House, which is that we have a lot of business to get through today. This is clearly an important piece of legislation and we should consider it in the order in which the amendments have been scheduled to be debated. I ask the noble and learned Lord to conclude his impromptu speech and save his more detailed views until the point at which we are scheduled to debate them.
Lord Lloyd of Berwick
My Lords, I hope that what I am about to suggest will find favour with the noble Lord and the rest of the House. I remind noble Lords that we have 20 pages of amendments before us to consider at some time tonight. They were never considered at all on the Floor of the House of Commons and have never been considered by us at all, until now. They could have been brought before us last year. They were not. They have been brought before us at the last moment, and it is almost disgraceful for us to be asked to amend the law in an important respect that will undoubtedly affect our foreign relations without the matter having been properly considered in this House and the other place. I am sorry that the noble Lord does not immediately rise to that debate, but I seriously suggest to him—and I hope that there will be support for this—that instead of debating these 20 pages of amendments, the whole part that deals with extradition should be considered in the next Session of Parliament. It could easily be dealt with as a new Bill brought before either this House or the other place at the beginning of the next Session. That would be the proper way to deal with a matter of this importance.
Lord Dubs
I support the noble and learned Lord in what he said. It seems rather curious that the Government have introduced amendments in the Commons at the last minute that, by definition, we cannot debate fully because we are dealing with Commons amendments. We cannot have the proper debate that we would be likely to have in Committee and on Report. We are being treated rather badly by the Government. This is an important issue. A couple of years ago, when I was a member, the Joint Committee on Human Rights spent a lot of time considering extradition—it is an important issue. In terms of parliamentary democracy, the Commons did not consider these amendments at all, and we are being asked to do so in a truncated form late this evening when we will not have a chance for a proper debate. Surely the noble and learned Lord has a good case.
Lord Phillips of Sudbury
My Lords, I understand my noble friend Lord Taylor’s point, but I also understand fully the point made by the noble and learned Lord, Lord Lloyd of Berwick. We bring our Chamber into disrepute if we try to deal with 80 pages of amendments in the course of this afternoon and evening, including, as has been said, 20 pages of not just brand new but highly complex legislation on which we ought to consult outside this Chamber. The issues concerned could not be of greater importance.
Lord Beecham
My Lords, I endorse what has been said by noble Lords, particularly the noble and learned Lord, Lord Lloyd. We have here a situation that is uncomfortably analogous to that which applies to the Jobseekers (Back to Work Schemes) Bill, whereby these Commons amendments are, in effect, being treated as if they were emergency legislation. Admittedly, they do not have retrospective effect, which I suppose is welcome, but the timetabling aspect is extremely unsatisfactory. This House does not have an opportunity to consider the amendments fully. There are a great many matters that your Lordships will wish to discuss, not least around Leveson, which itself has come late in the day—although one understands the reasons for that. There is no particular reason why the measures to which the noble and learned Lord referred must be dealt with today. I hope that the Minister will acknowledge that it is asking too much of your Lordships’ House to deal with this matter sensibly, fully and thoroughly—as it needs to be—at such short notice, particularly when considering everything else that we have to discuss today.
Lord Cormack
My Lords, I underline the importance of what has been said because we have been given an extra week’s recess, which none of us particularly wanted because many of us have many engagements in London that week. It is quite wrong to steam-roller something through. This is the Executive treating this House with something approaching contempt. That is something up with which we should not put.
Lord Taylor of Holbeach
My Lords, the business for today has been scheduled and there is a sequence for considering the debates. We can consider the amendment of the noble and learned Lord, Lord Lloyd of Berwick, at the point where it is scheduled to be debated. Meanwhile, I beg to move that the Commons amendments be now considered.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 1.
“Modification of NCA functions
(1) The Secretary of State may, by order, make—
(a) provision about NCA counter-terrorism functions (and, in particular, may make provision conferring, removing, or otherwise modifying such functions); and
(b) other provision which the Secretary of State considers necessary in consequence of provision made under paragraph (a) (and, in particular, may make provision about the functions of any person other than the NCA, including provision conferring or otherwise modifying, but not removing, such functions).
(2) If an order under this section confers an NCA counter-terrorism function, an NCA officer may only carry out activities in Northern Ireland for the purpose of the discharge of the function if the NCA officer does so with the agreement of the Chief Constable of the Police Service of Northern Ireland.
(3) That includes cases where an order under this section confers an NCA counter-terrorism function by the modification of a function.
(4) An order under this section may amend or otherwise modify this Act or any other enactment.
(5) An order under this section is subject to the super-affirmative procedure (see section 39 and Schedule 19).
(6) In this section “NCA counter-terrorism function” means an NCA function relating to terrorism (and for this purpose “terrorism” has the same meaning as in the Terrorism Act 2000 — see section 1 of that Act).”
Lord Taylor of Holbeach
My Lords, I beg to move that this House agree with Commons Amendments 1, 26 and 137.
These amendments restore to the Bill the power to confer counterterrorism functions on the National Crime Agency by means of an order, subject to the super-affirmative procedure. Noble Lords will recall that this House removed what was then Clause 2 of the Bill at our Report stage.
We have reflected carefully on the concerns raised in this House about the level of scrutiny afforded by the super-affirmative process. We remain firmly of the view that this is an appropriate matter for secondary legislation and that the super-affirmative procedure provides substantial opportunity for parliamentary scrutiny and for Members of both Houses to influence the shape of the legislation. This question was debated at length in the House of Commons and although there were Members who shared the concerns of some in this House, ultimately the position of the Government prevailed when the matter was put to a vote.
In seeking to restore this clause to the Bill, your Lordships’ House will note that we have retained the important safeguards for the chief constable of the Police Service of Northern Ireland, in recognition of the sensitivity of the arrangements for countering terrorism in Northern Ireland. Primacy for the operational response to counterterrorism in Northern Ireland rests with the chief constable of the PSNI. The order-making power respects that; it cannot change that; and, indeed, it ensures that there is clarity as to the relationship between the PSNI and the NCA should counterterrorism functions be conferred on the agency in the future. What is important is that, should a future review of counterterrorism policing arrangements conclude that the NCA should have a counterterrorism role, that role, whatever it may be, must dovetail with the distinct counterterrorism arrangements in Northern Ireland.
We recognise that any decision to give the National Crime Agency a counterterrorism role will be an important one. We have no wish to diminish, impede or lose those aspects of the current arrangements that work well. However, with the creation of a National Crime Agency, it is reasonable that the Government consider afresh how the current counterterrorism policing arrangements work and to review whether there might be a role that the agency could play to enhance our response to the terrorist threat. These are questions that can sensibly be considered only after the NCA is up and running and then only after a full review. If a decision is made in the future that there is a counterterrorism role for the National Crime Agency, then the super-affirmative process, and the conditions that are tied to it, provide ample opportunity for this House and the other place to scrutinise the draft order to the degree that it deserves.
Under the super-affirmative procedure, the Home Secretary must first consult with persons affected by the proposed order. Thereafter, she must publish the draft order and a document which explains it. There is then scope for a committee of either House to report on the draft order which the Home Secretary must consider along with any other representations before the original order, or a revised version of it following such reports and representations, is placed before both Houses for approval. It will then be for both Houses to debate and agree the order before it is made. This is not a process that should be taken lightly.
Let me be clear: the power contained in this provision may not be used to remove any function from any body, including police forces. What this Bill proposes is the creation of a National Crime Agency charged with the responsibility to lead the fight against serious, organised and complex crime. Commons Amendment 1 is concerned with enabling the Home Secretary to give effect to the outcome of a review which, by definition, had concluded that the existing arrangements in respect of counterterrorism would be enhanced by conferring relevant responsibilities in this area on the NCA.
I again pray in aid the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill the committee agreed with the Government that such a provision was not unprecedented, and indeed the notion that additional functions could be conferred on a statutory body by secondary legislation was well established. We have been clear throughout this process that the position remains that we have no preconceived notion as to the outcome of a review of counterterrorism policing arrangements and the future role of the NCA, if any, in those arrangements.
As some noble Lords will know, and indeed will have experience of, counterterrorism policing today is a partnership endeavour among all police forces. Chief constables each retain their full operational responsibility for policing in their force area, but they have put in place through ACPO a framework of agreements which underpin the present national counterterrorism policing arrangements. These consist of a range of national lead responsibilities and support roles distributed among several forces and undertaken by those forces on behalf of all forces.
It is right that in the future we should be giving consideration to how the NCA might be able to enhance those arrangements. We continue to believe that it is also right that we should build into the Bill the flexibility to implement the outcome of such a review in a timely fashion through secondary legislation, but subject to a high level of parliamentary scrutiny in the form of the super-affirmative procedure. The Government would rightly be criticised if they could not implement the findings of a review for a year or more for want of the necessary primary legislation. This is not about whether the NCA should or should not exercise counterterrorism functions. That debate is for the future. Rather, the issue today is about the mechanism by which such functions could be bestowed on the agency. The mechanism provided for in Commons Amendment 1 is therefore a perfectly proper one. I would urge the House to agree the amendment and to reject Amendment 1A in the name of the noble Baroness, Lady Smith.
Amendment 1A (to the Motion)
Moved by Baroness Smith of Basildon
Leave out “agree” and insert “disagree”.
Baroness Smith of Basildon: My Lords, as we have heard from the Minister, at the Report stage of the Bill in November, your Lordships supported the deletion of the clause that provided the Secretary of State with the power to transfer by super-affirmative order counterterrorism functions from the Metropolitan Police to the National Crime Agency. The amendment was in my name and those of the noble Lord, Lord Blair, and my noble friend Lord Rosser. The reason for the amendment was not the transfer of functions, which may well be appropriate at some point in the future, but because such an important and crucial decision should benefit from the appropriate scrutiny of Parliament, which cannot be provided for without primary legislation. As the Minister said, government Amendment 1 would bring back that clause. My amendment, to disagree with that amendment, would delete that provision and retain the status quo.
The reasons for bringing this amendment back to your Lordships’ House are perhaps three-fold. First, the priority of any Government and any Parliament is the security of their citizens, and counterterrorism is, as the noble Lord would readily confess, a key issue in that security. I repeat and emphasise that we are not passing judgment on whether it may, in future, be desirable for the NCA to have responsibility for counterterrorism; only that such a decision must be evidence-led and appropriately consulted on and scrutinised. The Metropolitan Police have built up considerable expertise and skills in relation to counterterrorism and if the Government wish to remove that responsibility and function from the Met—the noble Lord referred to a review—they would need to have a very strong case to do so. I am sure that if it becomes the right course of action in time, that case will be made, and considered appropriately. However, we do not believe that this decision deserves anything other than full and proper scrutiny, which can only be provided by primary legislation. That view was fully endorsed last year by the Joint Committee on Human Rights in its report on the Bill, which stated:
“In our view, the potential human rights implications of a decision to confer counter-terrorism functions on the NCA are sufficiently significant to warrant primary rather than secondary legislation, to ensure that Parliament has the fullest opportunity to scrutinise the possible implications. We recommend that clause 2 be deleted from the Bill”.
Your Lordships’ House agreed with that conclusion and removed Clause 2 before sending the Bill to the other place.
In terms of effective scrutiny, which the noble Lord referred to in his comments, it is disappointing that the Government did not reintroduce this clause at the Committee stage in the other place but waited until Report. Similar comments were made by the noble and learned Lord, Lord Lloyd. I find it difficult to accept that this was a last-minute decision by the Government to bring this clause back. Why did they not bring it forward earlier, to allow the other place to have the opportunity to debate it in Committee and have a fuller discussion? The Minister said that it had full and, I think, considerable discussion in the other place. In fact, it had two and a half hours on Report and I am not convinced that that was long enough for the Commons fully to consider the matter. This is a big decision and a major issue. Whatever decision is taken in time by the Home Secretary and the Government about removing counterterrorism to the NCA, if that is what they so decide, I want the Home Secretary and the Government to have the full confidence of Parliament and the full confidence of all those involved in counterterrorism that the right decision has been made.
My second point is that, although the noble Lord is right in that the super-affirmative procedure allows for greater scrutiny than an affirmative resolution, it does not provide the level of scrutiny that gives that confidence for the Government or the Home Secretary that I spoke about. The Minister helpfully wrote to me about the super-affirmative order, for which I am grateful, and sent copies of the letter to other noble Lords, repeating the process that was originally in the Bill. He is right when he says that it provides the highest degree of parliamentary scrutiny other than primary legislation. That in itself recognises how important it is that this measure has appropriate scrutiny. However, the briefing note states:
“Whilst the process makes express provision for a role of Committee of either House (it is expected that this would fall to the Home Affairs Select Committee in the House of Commons) this does not preclude a role for those Standing Committees with interests in secondary legislation”.
The note continues to say that the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee will continue to discharge their duties under this procedure. I did not know it had ever been suggested that they would not. Of course they would. That is not a reassurance but merely a statement of existing procedures for all orders that come before your Lordships’ House.
At the Report stage, we were assured that a super-affirmative order is, in effect, amendable. To an extent, that is right, but, crucially, it can be amended only at the draft stage that the noble Lord spoke of by permission of the Secretary of State and by the Home Secretary. The Secretary of State and the Home Secretary in the super-affirmative order must have regard to any representation made. Parliament does not have the power to amend; only the Secretary of State has that power.
Lord Condon
My Lords, I support Amendment 1A, moved by the noble Baroness, Lady Smith, for the reasons that she has set out. I find myself agreeing with much of what the Minister said, apart from the mechanism that he advocates should be used in deciding this issue.
As the noble Baroness, Lady Smith, has said, this issue is so important to the national interest that the only mechanism that should be used to transfer responsibility for the lead on terrorism from the Metropolitan Police to the NCA or related agencies is primary legislation. Like the noble Baroness, I cannot imagine any urgent situation where primary legislation would impede the notion of national security and a super-affirmative order would be the better mechanism to use.
Lest I should be out of date in my feelings about this issue, I consulted the current Commissioner of the Metropolitan Police last Friday to see if my views and his were on the same wavelength. He is content for me to relay to your Lordships’ House that he shares my concerns that if there should be change—I am not against the notion of change—primary legislation is the vehicle that will best take care of the public interest on this issue.
I have said before in your Lordships’ House that I am not implacably opposed to any transfer. In saying that, I remind the House of my recorded interests in policing and that for seven years as commissioner this was a role that I discharged in leading the force that had this co-ordinating and leading responsibility. I believe that a super-affirmative order is the wrong way to take care of all the arguments and to preserve the public interest.
Important issues that will have to be considered if there is to be a change include the fact that more than 80% of terrorist offences on the mainland are played out, sadly, in London, and that in fighting terrorism hearts and minds and prevention are as important as detection. Therefore, an integrated approach, which the Metropolitan Police has built up over decades with school visits, visits to mosques and neighbourhood policing, is as important in the fight against terrorism as the drama of executing warrants early in the morning and dramatic seizures of explosives. This is an integrated effort that has been built up over decades.
In the 12 months to September 2012, arrests for terrorism increased over the previous 12 months from 153 to 245, an increase of 60%. The current arrangements are working very well in preserving the national interest on this issue. I am not aware of any arguing or lobbying by the security services for this change to take place. Perhaps I am out of date on that issue, but to my knowledge the Metropolitan Police Service and the other agencies involved in the fight against terrorism are not advocating these changes.
My fear is that the creation of the NCA—this fledgling, embryonic new body, which is not even fully functioning, which is already struggling with border issues and which I fear will be underresourced—has led to the administrative tidiness of considering the transfer of terrorism from the Metropolitan Police to the NCA. That may be the right thing to do in time. It is unlikely to demand an emergency overnight or within-a-few-weeks change that would lead to the notion of a super-affirmative order. I believe the national interest demands that only primary legislation should be used in this case and I urge your Lordships’ House to support Amendment 1A.
Lord Harris of Haringey
My Lords, a few minutes ago the noble and learned Lord, Lord Lloyd of Berwick, raised the question of the quality of scrutiny of legislation by your Lordships’ House. This amendment raises exactly the same set of questions about the quality of scrutiny that is possible for executive decisions. The Minister said that no decisions have been taken and that whether this is something the Government will want to do is an open question. He said that we need to see how the National Crime Agency develops and that only then will it be necessary to review and perhaps bring forward proposals. If that is the case, why do we need to legislate in this Bill for this process to happen in this particular way? If the Minister was saying that for the next 10 years the Home Office will not be presenting any Bills to Parliament and therefore this is the only legislative opportunity that exists, then maybe there would be a case for it. However, I do not recall a year when the Home Office has managed with no Bills. Sometimes it has had as many as four Bills before the Houses of Parliament. Therefore, it is likely that there will not be a suitable legislative opportunity at whatever time in the future it is considered appropriate to carry out this review.
Such a review having been carried out, the assumption that any transfer would be a simple matter which could be considered through even the elevated super-affirmative process is naïve. The integration, as the noble Lord, Lord Condon, stated, of counterterrorist work with mainstream policing is extremely important. I have probably said this in your Lordships’ House before but I live close to the Finsbury Park mosque. On the occasion that the Finsbury Park mosque was raided, as I arrived at the Underground station Metropolitan police officers were distributing leaflets explaining to the local community what had happened, why it had happened and what safeguards had been taken to protect the religious parts of that mosque. That was because counterterrorism is integrated into mainstream policing and there was a recognition that the Metropolitan Police would have to continue to police those streets after such a raid. That is why the integration of and arrangements with the counterterrorist units within the various forces around the country are so important. Shifting some or all of that to the National Crime Agency is complicated. These are not straightforward issues and they certainly ought to be debated properly in Parliament. That is what we are likely to miss.
I have another concern. We all now need the National Crime Agency to be a success and I believe it probably will be but it is going to take a while. Every reorganisation takes time. Every time you throw all the pieces up in the air and wait for them to settle, there is a period when the organisations have to come together. This is saying to an organisation which is not yet formally established, as this legislation is not yet through, that there may be some massive change to its remit just around the corner. I do not believe that is good for the current functions of the National Crime Agency; nor do I think it is necessarily good for counterterrorism if that change is to be made at some point in the future.
The Government have never answered the question of what is the problem that they are trying to fix. They say, “There might be a problem. We might have a review at some point in the future and if we do have a review, we want to be able to push this through by super-affirmative resolution”. That is simply not good enough. These are important questions. There must be proper parliamentary scrutiny in the future when these matters are considered.
Lord Soley
My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I confirm that the Minister is right that we said that the super-affirmative procedure had been used before in similar cases and, in principle, could be used. However, that is not a key question. The key question has already been put and I do not wish to elaborate on it too much. Is it appropriate to use that procedure or would it in fact be better for quality-of-legislation purposes to have new legislation in the situation described in the proposed new clause? I tend to the view that if you are going to make a decision of that type, then new legislation would be better.
I asked myself whether it might become urgent to do that and whether we would then need urgent legislation, given that it deals with terrorism. I find it difficult to see the circumstances in which that might happen, but if it did then both Houses are quite capable of urgent legislation. However, that does not seem to be on the agenda. The real question is whether we would get the legislation right. In those circumstances, particularly given the nature of the cross-party consensus that one is usually able to build when you are looking for ways of dealing with terrorism, I would be surprised if it were not possible for a new Bill to be dealt with relatively expeditiously. The scrutiny given in both Houses, particularly this one, might be better than using the super-affirmative procedure, which I agree is an accepted practice, as we discussed at some length in the Delegated Powers and Regulatory Reform Committee, but whether it is best practice is a different question.
Lord Reid of Cardowan
My Lords, I approached this issue with an open mind and attempted to ask myself what benefits might be gained from doing this particular thing in this particular fashion. I do not think that I have ever been accused of being soft on terrorism. I genuinely believe that the first obligation of a Government is to protect their citizens. I therefore sought to discover, in asking myself and in listening to others, what might be the huge advantage and efficacy, first, of transferring from the Metropolitan Police to the NCA and, secondly, of doing it in this fashion. I am afraid that I failed to persuade myself that there is such a case.
Unlike my noble friend Lord Harris and the noble Lord, Lord Condon, I have no particular interest in the Metropolitan Police, although obviously I have an interest as a former Home Secretary. However, the points that they made about the nature of the fight against terrorism were very well made. This is not just a mechanistic operational question. It covers far more than investigations and intelligence. It covers community relations, counter-radicalisation, relationships in the community, and so on. I fully accept that there is a degree of resistance, sometimes unspoken, from police services throughout the country as the Met has the lead on this. However, I think that it has discharged that responsibility very well indeed. In the absence of any problem to be solved, we have to ask why a solution of this nature has been proffered.
My second point concerns the emerging nature of the National Crime Agency. Every time I read about the NCA, which has not yet been formally established, as my noble friend Lord Harris pointed out, it seems to have inflated its own powers and scope. I am not quite sure who now controls the fight against illegal immigration as the UK Border Agency has been split off into a different agency and there is a second agency that comes under the Home Office. I understand that there are thoughts about the NCA having responsibility for controlling our borders as well and now counterterrorism is being envisaged. My third point is that we cannot start this from scratch. The fight against terrorism relies on a reservoir of experience, a culture, an operational expertise, knowledge within the system and so on.
My final point is about the nature of doing this. If it was absolutely essential to transfer such powers immediately, in a very short period or without obstacle or difficulty, I could see the Government’s case, but I have not yet been able to envisage such circumstances. Indeed, if I envisage sudden emergencies arising, I would have thought that that was precisely the time you do not want to change the agency handling them. You would want to carry out such a profound change in such an important area over a period of time with a great deal of thought being given to the transition. If that is the case, why are we looking for some immediate expedient to transfer it with the minimum of parliamentary scrutiny?
Having approached this with an open mind, I have found what I have heard so far entirely unpersuasive. I have listened to everything that has been said but I do not think that adding parliamentary scrutiny to a questionable transfer would in any way impede the fight against terrorism. In fact, it would assist it.
Lord Blair of Boughton
My Lords, I am sorry that the House is going to hear a series of commissioners being referred to and speaking. I have cut my speech right down because there was nothing that I disagreed with in the speeches that followed the Minister’s speech.
I shall emphasise one thing and ask one question. I gather that in the other place it was said that this is a procedural matter. It is not a procedural matter, but a matter of national security. The deputy national co-ordinator of counterterrorism, a Metropolitan Police officer acting under the command of the Metropolitan Police Commissioner, said in public this week that the terrorist threat is rising. As my noble friend Lord Condon said, and I can vouch for it from my time as commissioner, there has not been a single plot that did not arise in, pass through or aim at London. When the bombs go off, whether in London or Glasgow, only the Metropolitan Police can put thousands of officers on the road or fly people in Chinook helicopters to Scotland. That is because the Metropolitan Police is the size it is. The NCA will never be that size. That is one other aspect of why the Met is the right beast to do this job of enormous national importance.
I echo the points being made to the Minister. Has there been any evidence of failures in counterterrorism by the Metropolitan Police? There is no evidence that anybody seems to be aware of. Is there any evidence that having counterterrorism policing in a separate agency from territorial police forces is a good idea? No, there is not, and there is exactly the opposite if you look across the Atlantic with the divisions between the Department of Homeland Security, the FBI, the CIA, the New York Police Department, and so on. The person who first began to mention the idea that counterterrorism should be taken from the Metropolitan Police is one Boris Johnson. He made that point in 2008 at the Conservative Party conference. I would like reassurance from the Minister that the sectional interests of London Conservatives are not being put in front of national security because the reason that Boris gives for this is that it would allow the Mayor of London alone to choose the Metropolitan Police Commissioner without the influence of the Home Secretary. That is a very poor argument for imperilling national security.
Baroness Hamwee
What we are being asked to do this afternoon is to consider the procedure around a substantial issue, but it is the procedure. It seems quite logical that counterterrorism should be dealt with alongside and as part of dealing with serious crime and organised crime. They are often inseparable activities that fund terrorism, and I suspect they largely come within the remit of the NCA, or will do when it is in operation. The NCA will be able to task police forces. Can the Minister confirm that it will not have a lot of bodies on the ground, but will be able to task existing forces—including, presumably, the Met? Is this the way it is to operate?
I appreciate the problems about Northern Ireland, and I do not suggest that they are not important. I also take the point that it is vital not to disrupt effective working relationships, to which the noble Lord, Lord Reid, referred. Again, perhaps that is answered in part by the point about tasking.
We must at some point address overall how this House and the Commons deal with secondary legislation, but that is not a matter for now. The super-affirmative procedure seems to go as far as it can in allowing for consultation with an iterative-process response to comments on the part of the Government.
I did not think that I would ever hear myself say this, but this issue probably comes as close as anything to lending itself to a yes or no answer for this reason: whether there is a super-affirmative order or primary legislation, there will be regulations dealing with transitional arrangements and all the detail. Whichever procedure we have, it will not avoid those. The regulations will go through their habitual course.
Finally, can the Minister explain how, in legislative terms, counterterrorism is to be moved away from the Met, if it is? I am unclear whether any legislation is required for that part of the process. As I read it, counterterrorism is with the Met under a direction—not an order—from the Secretary of State. If that is so, then the Government’s proposals would mean far more involvement by Parliament than has hitherto been the case on this issue; I may have read this completely wrong and the Minister will put me right when he responds.
Lord Kerr of Kinlochard
My Lords, I find today’s business difficult. Two categories of difficulty arise. This provision is much less difficult. I find the case made by the noble Baroness speaking for the Opposition persuasive and familiar. I have heard it before. I agreed with it when I heard it in earlier stages of consideration. My difficulty when the Commons reject our proposals is that I always feel cautious about disagreeing with the Commons. However, in this case, they have not heard our reasons for removing this provision. I am inclined to go with the noble Baroness who spoke for the Opposition, and say again what we think, at least to ensure that the Commons hear and listen to it.
I have much greater difficulty with the provisions that we are going to look at today which we have never seen before. The point made by the noble and learned Lord, Lloyd of Berwick, and supported by the noble Lord, Lord Cormack, is very important. For us to have to look under this procedure at language and provisions which are entirely new and were not in the Bill that was worked on here, in a rushed debate, without time to take advice from outside, conflicts with the concept of the House of Lords as a serious revising Chamber. I hope that the Minister will think carefully about that.
Lord Taylor of Holbeach
My Lords, this has been a good and useful debate. I thank noble Lords for presenting their arguments, in particular the noble Baroness, Lady Smith. Perhaps I can reassure her that this is not about the Metropolitan Police any more than it is about any other of the territorial police forces in this country. This is about a procedure whereby we can use or consider using the National Crime Agency as a co-ordinating body within any future counterterrorism measures. That decision has not been made; it is subject to review. Many noble Lords have made speeches that are quite valid and contain valid points regarding that review. I listened to noble Lords in that regard.
I referred to our disappointment at our inability to gain a legislative consent Motion from the Northern Ireland Executive. It is a matter of disappointment but it does not remove the opportunity, as we will find when we discuss the next series of amendments, for the National Crime Agency to operate in Northern Ireland. That is not the point at issue. It has always been recognised that in counterterrorism matters the Police Service of Northern Ireland has a particular role of its own, and this legislation respects that role. We are not making a decision about the future of counterterrorism. We are putting in place an opportunity for Parliament —my noble friend Lady Hamwee is quite right about this—to put the conclusion of a future review in place without undue delay so that there is an opportunity, perhaps for the first time, to consider fully the implications of how counterterrorism is co-ordinated on a national base. It would not be understood by people outside this place if, having conducted a review, and that review having been announced to Parliament, we had to wait as long as a year for a suitable legislative vehicle to hitch primary legislation to. We all know that secondary legislation is a more efficient way of presenting issues to Parliament; it is not a method by which Parliament is bypassed.
The noble Baroness, Lady Smith, asked about the timing of the Commons amendments. At Second Reading my right honourable friend the Home Secretary announced to the House that she was proposing to extend the commitment to reinstate this clause. At that point we were considering the debate in the House itself, and were also in discussion about seeking legislative consent in Northern Ireland. It was only at the conclusion of those elements that we were in a position to present it on Report in the Commons where, as the noble Baroness herself said, two and a half hours were devoted on the Floor of the House to considering this issue.
The noble Lord, Lord Condon, doubted whether it was proper for a change of this type to be considered in anything other than primary legislation. Much of what the noble Lord said covered the sorts of issues that will be relevant to a future review, of the type that we have not had before, into the way in which we co-ordinate CT and might involve the National Crime Agency. I hope that such a review would consider the very points that the noble Lord made.
The noble Lord, Lord Harris of Haringey, mentioned the complexity of the issue. Of course it is complex. This is about trying to find a mechanism for making a decision. In effect, all chief constables are responsible for ensuring appropriate and effective counterterrorism in their force areas. All force areas maintain a Special Branch, for example. There is already considerable activity at every force level. This enables the review to consider whether there is a role for the National Crime Agency in co-ordinating the activity at national level. It does not question the fact that the role of the Metropolitan Police, for reasons that have been stated in the debate, will be very important before, during and after the review.
I think that it was the noble Lord, Lord Harris, who asked me what problem I was trying to fix. It is clear that we already have in place very effective structures for counterterrorism policing. This is about reviewing those structures in the context of the National Crime Agency. We do not have a National Crime Agency at present but we will have one in place. We are considering what if any role the National Crime Agency should have in further enhancing our response to terrorism. To seek continuous improvement does not suggest that there is a problem. Until there is a review, we cannot say whether there should be a role for the National Crime Agency to play.
The noble Lord, Lord Reid, emphasised that the fight against terrorism is complex. I hope that nothing I said suggested that I believed otherwise. I hope also that I did not say anything with which he fundamentally disagrees about the nature of terrorism and the resources that need to be devoted to countering it. It is right that Parliament should have in place a review mechanism for considering how it implements these things.
The noble Lord, Lord Soley, took the view that there should be primary legislation. I disagree with him. One thing that we have all learnt is that much of the decision-making on an issue such as this will be quite detailed. It is almost bound to be dealt with in secondary legislation, because if there is to be a transfer of resources, funds or whatever, it will be based on a secondary legislation-type activity.
The noble Lord, Lord Blair, asked a very pointed question about whether there was party-political consideration in this, and whether it was a measure to appease the Mayor of London and gain some party advantage. I admire the noble Lord and I think that the question was unworthy of him. That is not what we are considering here. We are considering a proper mechanism whereby a national force designed to co-ordinate the fight against crime might also at some future date be asked by Parliament to have a role in counterterrorism. That is what we are considering today, and the question is about the procedure that we offer.
There are two legitimate points of view. It can be said that this is such an important thing that primary legislation is the only way to bring it about. I would say the most effective way of bringing it about is through the super-affirmative process following a review, which is precisely why I am arguing the Government’s case here.
My noble friend Lady Hamwee perhaps summed it up as well as anyone: no decision has yet been made or will be made until after review, and there will be no review until the NCA is up and running. This is about future-proofing national policing through the NCA, about a future role for the NCA with the additional flexibility made through the order-making power, and about what the NCA might be able to bring to enhance the counterterrorism response in the future if such a decision is made.
Lord Reid of Cardowan
I am very grateful to the Minister. Indeed, he is right that there is almost nothing I disagree with in what he said, with one exception: his lack of explanation as to why one could not have legislation following a review. It is quite possible to have consultation in a review and then parliamentary scrutiny. He is presenting it as if one can only have a review and consultation if one is going to the affirmative procedure. What he has not explained is the need for that mechanism and the avoidance of further parliamentary scrutiny, not in the detail but on the major issue, should it arise, of the transfer of the lead on counterterrorism. That is a substantial issue.
Lord Taylor of Holbeach
I am certain it is the nature of these things that following the review, Parliament would have an opportunity to debate the issue before the super-affirmative proposal is laid. I made the point earlier that any party affected by this secondary legislation has the right to be consulted. Parliament itself is likely to express a view when that decision of a review is made, before a super-affirmative procedure is even tabled. I cannot imagine an issue of this importance passing noble Lords’ attention and not being brought to the attention of the Minister in this House to account for what was being proposed. I cannot see that being a realistic scenario. I would expect to have to answer to this House for a decision of that nature. Indeed, the super-affirmative procedure provides for an opportunity for full consideration of the detail, as the noble Lord has said, of what is going to be required in the transfer of these powers.
My noble friend Lady Hamwee asked about tasking powers in the NCA because they apply to police forces in England and Wales and they would apply to the functions of the NCA. For the moment, that is limited to serious and organised crime, but in future it could include counterterrorism if such functions were confirmed through secondary legislation, or the super-affirmative procedure, in the future.
This has been a useful debate. I do not waver from my conviction that the House has a role to play in debating the issues, but I think that the provisions of the Bill, as amended by the Commons, provide the right mechanism for doing so.
Baroness Smith of Basildon
My Lords, I have listened with great care to the Minister, and I think he has done his best to reassure the House on the level of scrutiny that he proposes. However, I think he falls into the same mistake that his colleague Jeremy Browne made in the other place as seeing this as a procedural issue. He will have heard from noble Lords tonight with enormous experience—far more experience than either he or I have in these matters—that it is not regarded as a procedural issue but a very serious issue.
I said in my opening remarks, and the noble Lord, Lord Reid, made the same point, that the greatest responsibility that a Government and, I think, a Parliament have to their citizens is to ensure their safety and security. The noble Lord, Lord McNally, indicated his assent on that as well. As the noble Lord, Lord Reid, said, adding scrutiny to what he regards as a questionable transfer—although others would see it differently—but to something that raises concern, can only help rather than hinder any Government. Our Cross-Bench Peers with enormous experience in this, such as the noble Lords, Lord Condon and Lord Blair, with their vast experience of policing, raised real concerns about how such a transfer could be effective.
The Minister talks about a review and places great store by that review and the ability of noble Lords to contribute to it, but a review is not primary legislation. He says that a Government would seek to hitch to another Bill such a proposal to transfer counterterrorism from the Met to the new National Crime Agency. I would not expect Her Majesty’s Government to hitch something to another Bill, and I do not know what the Minister is gesticulating about, because this is a serious issue. It is hard to conceive, as other noble Lords have said, of a time when this would be in emergency legislation; it would be the wrong time, but noble Lords across your Lordships’ House would do their best to ensure proper and effective scrutiny in the interests of good legislation, for no other reason than to make sure that we get something so serious absolutely right.
The Minister will have heard that there are doubts as to whether such a transfer would be appropriate. It is because some doubts have been raised that there should be a proper process and procedure for parliamentary scrutiny to ensure that, if such a step is taken, at some point in future, after review and after the Government are satisfied that the NCA is operating correctly, those doubts should be raised in primary legislation. It is absolutely crucial; if the Home Secretary wants to take this step, she needs to ensure that she has the confidence not just of Parliament but of all those involved in counterterrorism. That is what proper and effective scrutiny through primary legislation would seek to achieve.
The Minister has tried, but he has failed to convince me that a super-affirmative order that is unamendable, even if the Home Secretary wants it to be amended, and which does not have the degree of scrutiny of primary legislation, is an appropriate way in which to move forward on something so serious and important to the nation. I therefore ask to test the opinion of the House.
Lord Taylor of Holbeach
My Lords, I shall speak also to Amendments 28, 29, 44, 47, 52 to 60 and 138.
Perhaps I may focus on the most noteworthy amendments in this group. They are Amendments 28, 29, 44, 47 and 138, which, as I alluded to in the previous debate, relate to the National Crime Agency’s role in Northern Ireland. These amendments are a regrettable but necessary response to the Northern Ireland Executive’s decision not to take forward legislative consent for the National Crime Agency. To say that this is a disappointing outcome does not do justice to the implications that this will have for the effectiveness of the National Crime Agency, the integrity of the collective operational response to serious and organised crime and, most importantly, the protection of the people of Northern Ireland.
However, let me make it clear that the National Crime Agency will continue to operate in Northern Ireland, albeit that its activity will be limited to reserved and excepted matters such as immigration offences and drug trafficking. The amendments and the new schedule that are necessary to ensure that the Bill does not break the Sewel convention give effect to that limitation.
The new schedule introduced by Amendment 138 sets out those provisions that will not extend to Northern Ireland. As a result, for example, NCA officers will no longer be able to be designated with the powers of a constable in Northern Ireland, the Police Ombudsman for Northern Ireland will no longer have oversight of the NCA in Northern Ireland, and the PSNI has been removed from the duties to co-operate and share information. These are important operational losses, but as transferred matters they are areas on which we in this House cannot legislate without consent.
However and importantly, the new schedule also provides a series of order-making powers whereby should the position of the Northern Ireland Executive change in the future, the NCA provisions can be extended to Northern Ireland, subject to the agreement of the Northern Ireland Assembly. We will, of course, do our utmost to minimise the operational impact of the Executive’s decision, but the limitations on the agency’s activity in Northern Ireland will have implications for the fight against serious and organised crime in Northern Ireland. I must not mislead the House on that point.
As I have indicated, the NCA will continue to operate on a UK-wide basis, including in Northern Ireland. Even with the restrictions in the new schedule, there is still much that the NCA can do to tackle serious, organised and complex crime in Northern Ireland, both through its own investigations and by supporting the Police Service of Northern Ireland and other agencies. The strong operational relationship that the Serious Organised Crime Agency has built up with the Police Service of Northern Ireland will continue with the National Crime Agency. NCA officers will still be able to be designated with customs and immigration powers and will therefore be able to take action against serious, organised and complex customs and immigration cases.
The NCA will still be able to focus on asset recovery work, whether through the excepted tax assessments under Part 6 of the Proceeds of Crime Act or through taking forward civil recovery cases against property in Northern Ireland in respect of reserved or excepted offences such as immigration offences, fuel duty evasion and drug trafficking. More importantly, operational partners will continue to be able to access the wider specialist capabilities that will reside in the National Crime Agency, such as the new National Cyber Crime Unit, the NCA’s network of international liaison officers and the Child Exploitation and Online Protection Centre.
I assure noble Lords that my right honourable friend the Home Secretary is continuing to work with the Secretary of State for Northern Ireland and the Northern Ireland Minister of Justice, David Ford, to secure agreement. These amendments do not in any sense denote an end to our negotiations. It remains our objective to ensure that the NCA can operate in Northern Ireland in the same way that it can in the rest of the United Kingdom. Until that time, these amendments are but a necessary stop-gap so that we respect the Sewel convention. We will continue to strive for an equitable agreement between the parties in Northern Ireland and, once secured, these amendments will ensure that we have the necessary order-making powers to give effect to such an agreement.
I hope that I can deal briefly with the other amendments in this group. Commons Amendment 2 to Clause 2 converts the existing power on the Home Secretary to set strategic priorities for the NCA into a duty to do so. The Home Secretary’s role in setting the strategic direction for the agency is obviously of central importance. The Government’s intention has always been that the Home Secretary would set the strategic priorities, in accordance with the power granted by Clause 2. By placing such a duty on the Home Secretary, we will ensure that the agency will always have clear strategic direction from the Government of the day.
The other amendments, namely Commons Amendments 52 to 60 to Schedule 8, are essentially technical and drafting in nature. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.
Lord Empey
My Lords, the Minister’s proposals are, as he said, a matter of deep regret with regard to Northern Ireland. For those noble Lords who perhaps have not followed the case, the Northern Ireland Executive refused to allow the powers of a constable to be conferred on an NCA official. This means that, in practice, Sinn Fein vetoed the establishment of the National Crime Agency in respect of reserved matters.
This can be handled in different ways. We can hope, as the Minister says, that there will be a change of heart. There will not. My fear is that this will inadvertently result in Northern Ireland being used as a back door whereby people who are focused on crime could use the absence of the NCA to carry out their activities unmolested, unless the Police Service of Northern Ireland undertakes some of the roles that would otherwise have been carried out by the NCA in Northern Ireland. That will incur a cost that I doubt very much there are currently resources to meet. It also means that the national expertise that the National Crime Agency could bring to bear on these criminals will not be brought to bear. Common sense dictates that where you have a vacuum, people will fill it. While I accept the regrettable need for these amendments, I do not share the Minister’s current optimism that these matters will be resolved by negotiation. I just do not believe that they will be resolved.
I was always concerned about the devolution of policing and justice to Northern Ireland in the absence of a full agreement between the parties on how things would be done. There was no such agreement. It was a political necessity that was politically driven in the same manner as the euro was. The working out of the downstream consequences had not been done. It is therefore a matter of deep regret. Can the Minister tell the House what steps the Government will take if evidence emerges that there are elements of activity in Northern Ireland that are not dealt with by the PSNI, thus creating a vacuum in which people can indulge in criminal activities which could spread to the mainland? While I understand the conventions, I have to say to the Minister that devolution means precisely what it says. Power is devolved, but what is devolved can be undevolved. If there is therefore a national threat, I would like an assurance that the Government will meet it.
Lord Browne of Belmont
My Lords, I, too, regret that the role of the National Crime Agency in Northern Ireland has had to be limited due to the intransigence of Sinn Fein and the SDLP in blocking agreement to the legislative consent Motion for the NCA. Every year in Northern Ireland, hundreds of millions of pounds are lost to the Exchequer only to pass into the hands of criminal gangs, often to finance terrorist activities. To date, as a result of the joint work between SOCA and the Police Service of Northern Ireland, some 11 million drugs have been seized, 33 potential victims of human trafficking have been rescued, 23 million counterfeit and smuggled cigarettes have been intercepted, and £4 million of criminal assets seized. How will this work continue, when the National Crime Agency will have very little input into key issues in Northern Ireland as Clause 14 will abolish SOCA, which currently operates with the PSNI? After Royal Assent, that will not happen. I trust that the Government will continue to negotiate with the Northern Ireland Assembly in order to redress this balance.
Lord Cormack
My Lords, I intervene briefly because for five years I had the privilege of chairing the Northern Ireland Affairs Committee in another place. The first major inquiry we conducted was into organised crime. The report was received with concern, but also with considerable approval across Northern Ireland. I am deeply concerned to hear that the National Crime Agency is not going to be able fully and effectively to function.
Devolution was worked for very hard, but when it came to the devolution of policing and justice, many of us had considerable concerns and misgivings. Even so, we were glad that further progress was being made in what had been the most troubled part of our kingdom. However, the noble Lord, Lord Empey, was right in what he said in his concluding words. We have not dissolved the United Kingdom. Supreme authority rests with this Parliament. If those to whom we have devolved behave in such a way that not only do they endanger Northern Ireland, but by implication the rest of the United Kingdom, this Parliament cannot sit idly by. Although this should not be taken, any more than the words of the noble Lord, Lord Empey, as any sort of threat, it is a statement of the reality of the situation. Devolution does not mean independence. Devolution means responsibility, and if responsibility is not exercised responsibly, those who have devolved have a duty to regard that fact.
Baroness Smith of Basildon
My Lords, when the Crime and Courts Bill first came to your Lordships’ House, I questioned the Minister as to whether it was—I think I used the term—“oven ready”, as there seemed to be so much left to do in the Bill. Given that what was then a 41-clause Bill now has 18 new clauses, it was right to ask that question. The extradition issues, as we have heard from noble and learned Lord, Lord Lloyd, have been tagged on to the Bill. Indeed, the framework document which outlines everything the National Crime Agency should do and how it should do it is still not available, despite promises made at almost every stage of the Bill in your Lordships’ House and the other place.
One thing that emphasises that point is that no agreement was reached with the Northern Ireland political parties or the Assembly around what kind of architecture would work for Northern Ireland to ensure that, as we started the process, there would be a legislative consent Motion. To scrap SOCA, which has worked effectively with the PSNI in Northern Ireland, before the National Crime Agency is properly in place across the whole of the UK is an absolutely shocking state of affairs. It does a disservice to Northern Ireland and is hugely unfair to it.
I understand that having discussions and negotiations with all those involved to ensure that agreement can be reached can be difficult and very time-consuming. The Government were right to have discussions and negotiations with David Ford, the Justice Minister, and I would accept and agree that he has worked extremely hard to find a way through this to ensure that the National Crime Agency could fully operate in Northern Ireland. However, I say to the Minister that the responsibility has to be that of government. I realise that in their negotiations with David Ford the Government have worked hard, but what I am puzzled about, and where I have a question mark over the Government’s actions, is that those who have been involved more closely in Northern Ireland know that in order to reach agreement on this issue—I am sure that the noble Lord, Lord Cormack, is very aware of this—you have to start early discussions with all the political parties, the elected representatives and all those who have a role to play. The comments made by Mark Durkan in the other place last week indicate to me that the discussions did not take place early enough.
I asked two Parliamentary Questions, one to the Minister and one to the Northern Ireland Office, about what discussions had taken place ahead of there being no legislative consent Motion before today’s debate. The Answer I had from the Northern Ireland Office was that:
“The Secretary of State for Northern Ireland has spoken regularly to the Northern Ireland Justice Minister about the National Crime Agency. He”—
the Justice Minister—
“has been leading discussions with Northern Ireland Executive colleagues about the National Crime Agency. The Secretary of State has not discussed the matter in detail with other Ministers in the Northern Ireland Executive. The Government remain committed to delivering a UK-wide crime-fighting agency focused on tackling serious, organised and complex crime”.—[Official Report, 28/2/13; col. WA 354]
If the Government are so focused, why were discussions not taking place with other Ministers in the Executive, who have a role in accepting a legislative consent Motion, and the representatives of political parties?
I have to say to the noble Lord that the response from the Home Office was dire. It said:
“Home Office Ministers and officials have meetings with a wide variety of international partners, as well as organisations and individuals in the public and private sectors, as part of the process of policy development and delivery. Details of these meetings are published on the Cabinet Office website on a quarterly basis”.—[Official Report, 27/2/13; cols. WA 333-34]
I was asking specifically whether Ministers had met and spoken to, and how often, the Northern Ireland Justice Minister and other Ministers in the Executive to try to get this moving. The response I get is that Ministers and officials have met “a wide variety of international partners”. Northern Ireland is part of the United Kingdom. Discussions were needed not with international partners but with the political parties and representatives of the Northern Ireland Assembly. That may mean that the Government, or the Home Office, have been talking to the Irish Government, which is a fair way forward, but not to be having those discussions that I think were necessary has led us to the point where, like the noble Lord, Lord Empey, I do not know, and do not share the Minister’s confidence, that this can be resolved in the way that we would like to ensure there is a fully functioning National Crime Agency across the whole of the UK.
I ask the Minister, in the absence of answers to my Written Questions—if he has to write to me I will accept that but if he is able to answer today that would be helpful—when did Ministers first raise the issue of the National Crime Agency, with or without the counterterrorism functions, with the Northern Ireland Ministers and political parties? Who has led the discussion? Has it been the NIO or has it been the Home Office, and who did they meet? However, the crucial question has to be: what happens now? What next? The Motion before us today from the Government that removes application provisions from the Bill is, under the circumstances, perhaps the only way forward at this stage. However, I hope we are going to see a step-up and continuation of the process in the interest of fighting serious and organised crime effectively in Northern Ireland and that there is not going to be a step back by removing Northern Ireland from today’s legislation.
Lord Taylor of Holbeach
My Lords, I understand the distress and disappointment, and if I may use the phrase used by the noble Lord, Lord Empey, the pessimism that he feels about these issues is clearly reflected in other contributions that have been made by other noble Lords. On the other hand, I am optimistic because, despite the criticism made by the noble Baroness, Lady Smith, we have sought to address these issues properly. If we had been overassertive in the requirements of the United Kingdom in this regard, we would have alienated a legitimate discussion process that was correctly placed with David Ford, the Justice Minister in the Northern Ireland Executive, and in the key position of securing these agreements. We were keen not to put him in the situation where we were seeking to second-guess where he was taking these discussions.
I will answer the noble Baroness, Lady Smith, in writing because she asked particularly about dates and so on. I do not have that information. Ministers and officials have had a number of meetings with David Ford throughout this process. The noble Baroness will know that I have talked to her about this on occasions outside this Chamber when she has asked me how things were going on this. I remember saying that it is a difficult and delicate matter. All noble Lords with experience of Northern Ireland will understand exactly why that is so. The Government were right that while we were prepared to compromise on a number of challenging areas, the negotiations had not been held on the basis of securing consent at all costs. I think noble Lords will be pleased that that is the case. That must be the right position for the Government of the United Kingdom to take on this issue.
For noble Lords who think that the Government should have intervened directly, I should say that this is devolution, a devolved process. It is absolutely right that the Justice Minister in Northern Ireland, David Ford, led these discussions. He has admirably served the interests of Northern Ireland in this regard with remarkable resilience, driving the discussions and negotiations at each turn, even in the face of some clear opposition. I have confidence in him, which is why I am ultimately optimistic that the people of Northern Ireland, through their elected representatives, will see the importance of having a combined national involvement with the National Crime Agency because of the capacity that it will bring to policing in Northern Ireland.
We are not in the business of creating gaps. The NCA was intended to close gaps in the current arrangements. That was in the Bill that we planned to create, but the Executive could not agree, which is why these amendments are before the House. We remain open to discussion and we have provided the necessary order-making powers to fully extend the NCA provisions to Northern Ireland should the position of the Executive change. Assuming the Executive stick to their decision, it is up to them to decide how to develop alternative capabilities for Northern Ireland to replace the work currently done by SOCA. As I have said, we are committed to providing as much operational capacity and capability as possible for the NCA operating in Northern Ireland. But, as I made clear, in the absence of legislative consent there are some things that the NCA will no longer be able to do, such as using Northern Ireland police powers to investigate serious and organised crime. This is to be regretted.
Lord Empey
Before the Minister sits down, perhaps he can address the question that I raised. In circumstances where agreement is not reached, where the Executive do not make alternative arrangements to pursue crime as was intended by the NCA, and where evidence emerges that crime is developing in Northern Ireland and is being spread to the mainland, what steps will the Government take?
Lord Taylor of Holbeach
I imagine that the noble Lord will be able to guess my answer, which is that any Government of the United Kingdom will respond in a responsible manner.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 3.
“Varying designations of authorities responsible for remanded young persons
(1) Section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (where child remanded to youth detention accommodation, court must designate local authority to look after child and meet costs) is amended as follows.
(2) In subsection (7)(a) (authority that already looks after child to be designated) after “being looked after by a local authority” insert “otherwise than by virtue of section 104(1)”.
(3) In subsection (7)(b) (in other cases, court must designate authority for area where child habitually resides or offence committed) for “, the local authority” substitute “but subject to subsection (7B), a local authority”.
(4) After subsection (7) insert—
“(7A) In a case to which subsection (7)(b) applies, the court is to designate a local authority in whose area it appears to the court that the child habitually resides (a “home authority”) except where the court—
(a) considers as respects the home authority, or each home authority, that it is inappropriate to designate that authority, or
(b) is unable to identify any place in England and Wales where the child habitually resides.
(7B) If in a case to which subsection (7)(b) applies—
(a) the court is not required by subsection (7A) to designate a home authority, but
(b) it appears to the court that the offence was not, or none of the offences was, committed in England and Wales,
the court is to designate a local authority which it considers appropriate in the circumstances of the case.”
(5) After subsection (7B) insert—
“(7C) Where a child has been remanded to youth detention accommodation, the court—
(a) which remanded the child, or
(b) to which the child was remanded,
may designate a local authority (“B”) as the designated authority for the child in substitution for the authority previously designated (whether that previous designation was made when the child was remanded or under this subsection).
(7D) Where a child has at any one time been subject to two or more remands to youth detention accommodation, a court which has jurisdiction to make a replacement designation under subsection (7C) in connection with one or some of the remands also has jurisdiction to make such a replacement designation in connection with each of the other remands.
(7E) Where a replacement designation is made under subsection (7C) after the end of the period of remand concerned, the substitution of B for the previously-designated authority has effect only for the purposes of regulations under section 103.
(7F) Where a replacement designation is made under subsection (7C) during the period of remand concerned, the substitution of B for the previously-designated authority—
(a) has effect, as respects the part of that period ending with the making of the replacement designation, only for the purposes of regulations under section 103, and
(b) has effect, as respects the remainder of that period, for all of the purposes listed in subsection (6).
(7G) A court may make a replacement designation under subsection (7C) only if it considers that, had everything it knows been known by the court which made the previous designation, that court would have designated B instead.
(7H) Where a replacement designation is made under subsection (7C) in relation to a remand, the previously-designated authority is to be repaid any sums it paid in respect of the remand pursuant to regulations under section 103.
(7J) A court which has jurisdiction to make a replacement direction under subsection (7C) may exercise that jurisdiction on an application by a local authority or of its own motion.”
(6) A replacement designation under the new section 102(7C) may be made in respect of a remand ordered before this section comes into force, and the amendments made by this section have effect for the purpose of making a replacement designation in any such case; but, in such a case, the substitution of B for the previously-designated authority (and any entitlement to repayment under new section 102(7H)) does not have effect as respects any time before this section comes into force.
(7) Except as provided by subsection (6), the amendments made by this section have effect only in relation to remands ordered after this section comes into force.”
Lord Ahmad of Wimbledon
My Lords, in moving that this House do agree with Commons Amendment 3, I shall speak also to Commons Amendments 4, 7 to 10, 32 to 37, 42, 43, 51, 61 to 92, 93 to 130 and 132. This group of amendments covers a range of issues in respect of provisions in Part 2 of the Bill, as well as adding some new provisions to that part, but I believe that they will generally be welcomed. I propose to focus my remarks on the most significant of these amendments.
Commons Amendment 3 makes a specific and technical amendment to the youth secure remand provisions in Section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under those provisions, local authorities are liable to pay the Youth Justice Board the accommodation costs of children subject to secure remand. As of 3 December 2012, courts ordering a secure remand must designate a local authority as the designated authority for the child. Full financial responsibility for the accommodation costs of securely remanded children will fall to the designated local authorities as of 1 April.
This amendment addresses a gap in the current law. When remanding a child, the court will tend to designate the local authority where the child lives. However, this is not always clear at the early stages of the case, so the court may designate a different local authority. By the next hearing, more information is generally available, so the court can change the designation to the local authority where the child lives. But under Section 102 of the 2012 Act, the liability to pay the secure accommodation costs for the period before the change is made still rests with the original local authority. This creates an unfair burden on a local authority where the child does not live, and puts at risk the effective recovery of costs by the Youth Justice Board. Therefore, Commons Amendment 3 gives the court powers to make a replacement designation, so all the accommodation costs can be recovered from the local authority that has subsequently been identified.
In addition, the amendment introduces the assumption that the court should designate the local authority where the child lives rather than the authority where the offence took place. The Government believe that in most cases it is right to designate the local authority where the child lives in accordance with the habitual residence test from which the duty for a local authority to provide accommodation and support flows. Of course, the court will retain overall discretion over deciding which local authority to designate.
Lord Beecham
My Lords, I will confine myself to two topics. Taken in reverse order of importance, the first is what has become known in common parlance as “bash the burglar” legislation. The Minister emphasised the need for bringing this measure into force as quickly as possible. Given the paucity of cases to which this would apply, as we discussed when we were debating the Bill, I find this to be little more than an example of gesture politics of the cheapest kind.
The second more significant matter, which I entirely support the Government in raising, is Amendment 9 about making use of films and other recordings of proceedings. I would not have spoken at all on this matter except that there was a report in the press at the end of last week about the position in Scotland where it now appears that a drama is going to be broadcast based entirely on recordings in the criminal court. This is under Scottish legislation; it is not legislation that applies in this country. This is exactly what those who have expressed fears about filming proceedings in court were really worried might take place. Apparently witnesses, parties in criminal cases and, in this particular case, a retrial of a significant case regarding a serious offence have been filmed and will be shown on Scottish television, presumably, as a rather dramatic production rather than a factual and low-key look at how the courts work. The English legislation that we are debating does not facilitate that, and I would be glad to hear the Minister give a firm assurance that it will not be extended to allow that kind of development, which would be a significant change in the way that the Government have envisaged matters and one in which we should in no way seek to experience what Scotland is about to undergo.
Lord Ahmad of Wimbledon
I thank the noble Lord for his support for much of what has been covered. He referred to self-defence as “bash the burglar”. He may think that; I could not possibly comment. We believe it is important that if the legislation is passed, no one should fall into the trap between Royal Assent being given and this becoming law so that it can be used as a defence. If we are making these changes, it is important that they happen as quickly as possible so that we prevent any occurrence of people who act. I contend that anyone confronted with a burglar, faced with such a situation where they are protecting their home, their family and their loved ones, is often faced with that instant decision. It is important that we give that instant protection. I therefore believe that the Government have taken the right way forward on this. I am sure that, on reflection, the noble Lord would agree with me.
The noble Lord mentioned broadcasting and, again, I welcome his support. As I said, we have put four locks in place. He raised the specific issue of broadcasting in Scotland and the filming of all parts of a trial. I assure him that we are not proposing to allow this at all. The safeguards that I have outlined will protect such an extension. He raised the specific issue of witnesses. I share his concern. The Government’s intention is to provide that level of protection. With those clarifications, I beg to move.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 4.
“Part 4A amends the selection procedure for certain senior judicial appointments until Part 4 of the Schedule is in force,”
Lord McNally
That this House do agree with the Commons in their Amendment 5.
“Enforcement by taking control of goods
(1) Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (procedure for taking control of goods) is amended as follows.
(2) In paragraph 17 (enforcement agent may use reasonable force to enter etc where paragraph 18 or 19 applies) for “or 19” substitute “, 18A, 19 or 19A”.
(3) After paragraph 18 insert—
“18A (1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 14;
(b) the enforcement agent reasonably believes that the debtor carries on a trade or business on the premises;
(c) the enforcement agent is acting under a writ or warrant of control issued for the purpose of recovering a sum payable under a High Court or county court judgment;
(d) the sum so payable is not a traffic contravention debt.
(2) “Traffic contravention debt” has the meaning given by section 82(2) of the Traffic Management Act 2004.”
(4) After paragraph 19 insert—
“19A (1) This paragraph applies if these conditions are met—
(a) the enforcement agent has power to enter the premises under paragraph 16;
(b) the enforcement agent has taken control of the goods by entering into a controlled goods agreement with the debtor;
(c) the debtor has failed to comply with any provision of the controlled goods agreement relating to the payment by the debtor of the debt;
(d) the debtor has been given notice of the intention of the enforcement agent to enter the premises to inspect the goods or to remove them for storage or sale;
(e) neither paragraph 18 nor paragraph 19 applies.
(2) For the purposes of a notice under sub-paragraph (1)(d), regulations must state—
(a) the minimum period of notice;
(b) the form of the notice;
(c) what it must contain;
(d) how it must be given;
(e) who must give it.
(3) The enforcement agent must keep a record of the time when a notice under sub-paragraph (1)(d) is given.
(4) If regulations authorise it, the court may order in prescribed circumstances that the notice given may be less than the minimum period.
(5) The order may be subject to conditions.”
(5) In paragraphs 24(2) and 31(5) (no power to use force against persons except to extent provided in regulations) omit “, except to the extent that regulations provide that it does”.
(6) Omit paragraph 53(2) (controlled goods to be treated as abandoned if unsold after a sale).
(7) Omit paragraph 56(2) (securities to be treated as abandoned if not disposed of in accordance with notice of disposal).
(8) In consequence of the repeals in subsection (5), in section 90 of the Tribunals, Courts and Enforcement Act 2007 (regulations under Part 3)—
(a) omit subsection (4) (procedure for regulations under paragraphs 24(2) and 31(5) of Schedule 12), and
(b) in subsection (5) omit “In any other case”.
(9) In Schedule 13 to that Act (taking control of goods: amendments)—
(a) in paragraph 37 (repeal in section 66(2) of the Criminal Justice Act 1972) for the words after “etc.),” substitute “omit subsection (2).”,
(b) in paragraph 74 (repeal of sections 93 to 100 of the County Courts Act 1984) after “93 to” insert “98 and”,
(c) in paragraph 85 (amendment of section 436 of the Insolvency Act 1986) for “436” substitute “436(1)”,
(d) in paragraph 125 (amendment of section 15 of the Employment Tribunals Act 1996) for ““by execution issued from the county court”” substitute “the words from “by execution”, to “court” in the first place after “by execution”,”, and
(e) in paragraph 134 (which amends Schedule 17 to the Financial Services and Markets Act 2000) for “paragraph 16(a)” substitute “paragraphs 16(a) and 16D(a)”.”
The Minister of State, Ministry of Justice (Lord McNally)
I beg to move that this House do agree with Commons Amendments 5. I shall speak also to Amendments 6 and 31. As the debates in this House and the other place have shown, there is broad agreement that more needs to be done to protect debtors from the unscrupulous practices of a minority of bailiffs, while at the same time ensuring that legitimate creditors can collect the money that they are owed. The Government are committed to achieving this. On 25 January, the Ministry of Justice published the Government’s response to the Transforming Bailiff Action consultation, which sets out the key reforms that we are undertaking to deliver on this commitment.
It may assist the House if I give a brief overview of the Government’s reforms, which centre on the implementation of Part 3 of the Tribunals, Courts and Enforcement Act 2007. Among other things, they will remove antiquated and confusing laws, provide clarity about the power of bailiffs, allow for the introduction of regulations setting out what goods a bailiff can or cannot seize and introduce a clear and fair charging regime. Furthermore, new mandatory training and an enhanced certification system will ensure that the individuals carrying out this difficult job are the right people, and will build on the existing remedies available if things go wrong.
The Government believe that the framework for the regulation of bailiffs in Part 3 of the Tribunals, Courts and Enforcement Act 2007 generally strikes the right balance between ensuring that all bailiffs operate to appropriate minimum standards and not subjecting the industry to overburdensome regulation. As such, I hope that the House can readily agree Commons Amendment 5, which will enable us to correct a number of inadequacies in the legislation. Having done so, we will be able to move quickly to bring Part 3 of the 2007 Act into force.
The key changes made to the 2007 Act are threefold. First, the amendment removes the ability to make regulations that would confer a power on enforcement agents to use reasonable force against debtors. It is one thing to countenance the use of reasonable force to enter premises; it is quite another to authorise such force against a person. Here the 2007 Act plainly got the balance wrong and it is right that we should provide this additional safeguard.
Baroness Meacher
My Lords, Amendment 6A relates to an amendment passed in this House to provide for an ombudsman service as a basic minimum of protection for victims of abuse by bailiff services. The lack of an independent regulatory system for bailiffs affects hundreds of thousands of our most vulnerable citizens, and we know that the recent and ongoing welfare benefits legislation will swell the numbers of such victims in the coming years. The purpose of bringing back this amendment to the House is to provide an opportunity for the Minister to explain the action taken since our debate. In December, the amendment had strong support from the Conservative Benches. The noble Lord, Lord Lucas, chair of the Enforcement Law Reform Group, said that he did not know one bailiff who would not support the amendment. The noble Lord, Lord Cormack, spoke eloquently about the importance of your Lordships’ House approving such a reform, but the Minister at the time could give no assurances.
Full ombudsman services are provided in health, housing, local government, financial services, legal services, telecommunications, prisons and other sectors, but we know that members of the public are probably more vulnerable to abuse of power by bailiffs than by almost any other cadre of workers. After all, bailiffs cone into our homes to seize our property. Little could be more offensive than that. Yet, in response to our amendment, the Government in the other place have rejected even this most minimal of protections for people who will inevitably include many mentally and physically disabled people who cannot fend for themselves.
I thank the Minister and his officials for a meeting last week when they explained many of the actions taken since our debate in December. I am grateful to the Minister for giving an assurance to this House—I think he gave this assurance—that every individual who is subject to abuse by a bailiff will have access to one or other ombudsman. It is a splintered system, not a complete system, but, if they can find their way through it, every victim will have access to the Local Government Ombudsman, the Parliamentary Ombudsman or the Legal Ombudsman. I hope the Minister will confirm that he said that. I should be grateful if he could make very clear that the Local Government Ombudsman will be able to deal with complaints about private bailiffs as well as in-house bailiffs. As the Minister made clear, the one area that is left out of this is companies. I have concerns about small businesses—perhaps one or two-person businesses—that may get into terrible debt trouble and have very unpleasant experiences. They will have no access to an ombudsman.
In his opening remarks, the Minister referred to training. I do not think he mentioned this, but I should be grateful if he could confirm that there will be a specific module on identifying vulnerability and vulnerable people. I should also be grateful if he could clarify that the training will not only include how to identify a vulnerable person but will be very clear about what the bailiff should do having identified a vulnerable person. It is no good identifying them if the bailiff proceeds to act inappropriately.
In December, I probed a lot about the length, breadth and depth of the training, and I am delighted to hear that there will be training of in the region of three months, including this rather important module. However, I should like to pursue the matter a little further. The Government’s response to the consultation referred to mandatory training. I should like an assurance from the Minister that there will be a set standard that a bailiff is required to meet. I am familiar with training in certain areas where the company simply has to tick a box to say that the bailiff has attended training. I am even familiar with security officers who will quite happily get someone else to complete the training for them and somehow or other the box gets ticked. We need an assurance that there will be a standard that bailiffs are required to meet. Will there be any independent verification of meeting those standards?
Finally, will the Minister say something about the work on information for victims that he mentioned at our meeting? We have a splintered and confusing system of ombudsmen for victims in different scenarios. It would be helpful to have on record the work going on with the CAB service, the web and so on to try to make sure that people know that they have access to an independent ombudsman. As the Minister said, the Government will reform the Tribunals, Courts and Enforcement Act 2007 to prevent the use of force against the person. Again, I should be grateful if the Minister could—perhaps he cannot—give some timeframe for that legislation.
In summary, the Government will introduce a certification process with no independent regulation of bailiffs and a rather incomplete and splintered form of ombudsman service. However, we can expect the quality of enforcement services to improve somewhat from a very low base. Of course, one cannot generalise, but we know that some very unpleasant things happen out there. There will be a staged process, to which the Minister referred, of implementation review. I hope the Minister can confirm that the results of those reviews will be made public and, at that stage, perhaps the Government will finally accept the crying need for independent regulation of bailiffs. I await the Minister’s response.
Lord Beecham
My Lords, I join the noble Baroness in welcoming the Government’s moves to tighten up the arrangements for bailiffs. Like her, however, I regret that they have failed to take the ultimate step of establishing a clear and relatively straightforward regulatory system. I am slightly puzzled by some aspects of their response to the consultation. For example, in paragraph 18 of their response, the Government say that they will implement Section 64 of the Act and “produce regulations” about the regulation of enforcement agents, which is a somewhat circuitous expression. Nor is it entirely clear where that would be heading.
Equally, the response goes on to say at paragraph 134 that the Government,
“will continue to work with stakeholders from the enforcement and advice sectors in developing the content of the regulations and will also work with HM Courts and Tribunals Service and the judiciary on the court procedure”.
I take it that that means that, ultimately, the Government will produce regulations to be approved by both Houses. Perhaps the noble Lord would be able to confirm that. It is clear, as the Minister has pointed out, that much of the work—or, any rate, the function—of the industry is directed towards recovering sums due to local or central government, hence the involvement of the Local Government Ombudsman. That work is likely to be enhanced considerably as councils seek to recover, if it is economical to do so, the likely shortfall in the collection of council tax now that a significant cut has been made in council tax support, and many people will now be called upon to pay council tax who have not hitherto done so, in rather small amounts. That may make collection uneconomic.
Be that as it may, and quite taking the point about the Local Government Ombudsman’s position, would it not be sensible, if we are thinking in terms of sensible regulation without offering competing avenues for this, for the Local Government Ombudsman’s responsibilities to be widened so that he can undertake that regulatory role for the whole system? Why not? Hopefully, local authorities, either singly or collectively, will in any case employ staff directly rather than contract out. It is in the contracting out of the service that we see so many of the problems.
It is interesting that the advice sector did not agree with the not unexpected majority of the enforcement sector and creditors in saying that the existing complaints process was sufficient and did not require any further government intervention. The advice sector thought that the processes,
“have proved to be ineffective or inadequate”.
Given the Government’s propensity to rely on the voluntary sector to make good the damage inflicted upon advice services generally—the withdrawal of legal aid and legal advice, for example—one might have thought that they would pay rather more attention to the advice of the sector in this sensitive area. As the Minister has, in fairness, readily recognised, there have been too many instances of abuse for us to be comfortable with the present position.
Finally, the Government propose a rather curious process of review at one, three and five-year intervals. It is not clear quite what form that would take, but I ask the Minister for an assurance that if it is seen that there is no significant improvement in how the system is working, they will revert to the concept not merely of support, advice and certification but of a proper regulatory system to which people can have ready and inexpensive access.
Lord McNally
My Lords, I will re-emphasise why we are not introducing an independent regulator. The legislative changes that we are making to protect people in debt from aggressive bailiffs together with the new laws and mandatory training and certification scheme, which bailiffs must pass before going into business, will provide enough protection against aggressive bailiffs. Bailiffs who do not follow the rules will be barred from the industry. We will also clarify the complaints process so that debtors know how to seek redress and what the responsibility of creditors and enforcements agents are.
As I have explained, in the process, the appropriate regulator in each of the areas where bailiffs are used will be able to be appealed to. We mentioned this small degree of commercial debt—less than 1%—and I would be happy to receive any representation from either the CBI or the Federation of Small Businesses if they thought that this was a genuine loophole causing a real problem.
Every individual will have access to an appropriate complainant authority. As the noble Baroness pointed out, we have indicated that we are looking for something like a three-month training programme; it will not just be a tick-box exercise. We are looking at other parts of the forest, as it were, to see whether there are training modules and practices that we can readily adapt. I confirm that the local government ombudsman will have responsibility for private bailiffs when they are acting for local authorities.
The noble Baroness rightly raised the problems of dealing with people who may have some difficulties with mental capacity. We would hope that in the training will come a clear responsibility to recognise and assess such situations. Where they identify that a vulnerable person is involved, they will refer back to the relevant authority to further instructions and, where necessary, bring in other assistance to deal with the situation.
As I have said, we are developing training that we consider a minimum requirement. We have not yet been able to gauge exactly the length of time that the training would take. However, we are clear that, at a minimum, bailiffs will need to understand the role that they play, the law that governs their powers, the practice of taking control of goods, the fees that they can charge and, as I have said, specific training to deal with vulnerable people.
On whether the system will allow complaints against bailiff firms as well as individuals, most complaints about bailiff companies relate to the fees charged by their bailiffs, the type of goods seized and the ways in which they were seized. All these issues will be dealt with under the new regulations and will be subject to the means of redress. The behaviour of individual bailiffs on the doorstep will be regulated through the certification system. Poor behaviour can be addressed by the removal of a certificate. We are working with the advice sector to identify any complaints that would fall outside the regulation. All bailiffs will have to be certified, and I can confirm that training will be independently accredited.
We will bring forward the regulations by negative resolution. The regulations have already been subject to a full and open consultation. Comments were invited as part of this process and were included with the consultation paper. Officials are currently working with stakeholder groups to refine the regulations, and we plan to make them available by the summer. As set out in the Tribunals, Courts and Enforcement Act 2007, the regulation will be subject to the negative procedure for statutory instruments.
As I said, I believe that what has been put forward in a way is greatly to the credit of the noble Baroness, Lady Meacher, who has championed these ideas through the House. I hope she recognises a victory when she sees one. I certainly hope, as I said before, that the House will agree to Amendments 5, 6 and 31.
Baroness Meacher
I thank the Minister for his response and say that my amendment to the Motion is not moved.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 7 to 10.
Lord McNally
That this House do agree with the Commons in their Amendment 11.
“Awards of exemplary damages
(1) This section applies where—
(a) a relevant claim is made against a person (“the defendant”),
(b) the defendant was a relevant publisher at the material time,
(c) the claim is related to the publication of news-related material, and
(d) the defendant is found liable in respect of the claim.
(2) Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
(3) But the court may disregard subsection (2) if—
(a) the approved regulator imposed a penalty on the defendant in respect of the defendant’s conduct or decided not to do so,
(b) the court considers, in light of the information available to the approved regulator when imposing the penalty or deciding not to impose one, that the regulator was manifestly irrational in imposing the penalty or deciding not to impose one, and
(c) the court is satisfied that, but for subsection (2), it would have made an award of exemplary damages under this section against the defendant.
(4) Where the court is not prevented from making an award of exemplary damages by subsection (2) (whether because that subsection does not apply or the court is permitted to disregard that subsection as a result of subsection (3)), the court—
(a) may make an award of exemplary damages if it considers it appropriate to do so in all the circumstances of the case, but
(b) may do so only under this section.
(5) Exemplary damages may be awarded under this section only if they are claimed.
(6) Exemplary damages may be awarded under this section only if the court is satisfied that—
(a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights,
(b) the conduct is such that the court should punish the defendant for it, and
(c) other remedies would not be adequate to punish that conduct.
(7) Exemplary damages may be awarded under this section whether or not another remedy is granted.
(8) The decision on the question of—
(a) whether exemplary damages are to be awarded under this section, or
(b) the amount of such damages,
must not be left to a jury.”
Lord McNally
My Lords, I beg to move that this House agrees with Commons Amendment 11. With this I shall speak also to Commons Amendments 12 to 19, 38, 46 and 131, and to the government Amendments 17D, 17H and 131BA to those amendments. This group of amendments, together with a new clause which your Lordships’ House has already added to the Enterprise and Regulatory Reform Bill, implement legislative parts of the Leveson cross-party agreement. Clearly these have been the source of much interest over the last week, since the Prime Minister announced last Monday that he had reached agreement with the Deputy Prime Minister and the Leader of the Opposition on proposals for a royal charter. As part of that agreement, the three parties also agreed proposals and exemplary damages and costs that are designed to incentivise publishers to join the new regulatory framework. These proposals are the subject of this group of Commons amendments.
I will first explain the key features of the Commons amendments. Commons Amendments 11 to 15 relate to exemplary damages, which are already available under the common law. They are, however, very rarely awarded, as they are reserved for the most serious cases. They are designed to punish, and only where there is no alternative. That general position will not change, although the new scheme for relevant publishers will change the position for them in relation to certain types of cases relating to the media, namely cases for defamation, misuse of private information, breach of confidence, malicious falsehood and harassment, as specified in Amendment 19.
Commons Amendment 11 incentivises publishers to join the regulator by making it clear that a court may contemplate awarding exemplary damages only in cases where a publisher has not joined the regulator, with very limited exceptions. This is on the basis that a publisher joining the regulator will face the prospect of regulatory fines of up to £1 million. However, subsection (3) of the new clause also provides that if a court is persuaded that a regulated publisher has acted in a way that would lead the court to award exemplary damages but for their membership of the regulator, and the regulator has acted manifestly irrationally in its approach to sanctioning that conduct, the court may exceptionally make an award for exemplary damages in that case. I know that this is one of the points on which my noble friend Lord Lucas has sought clarification in his Amendment 11A. I hope that he will agree that this is a very limited and clear exception to that rule, being available only when a court concludes that the regulator has acted in a manner that is manifestly irrational—a very high bar.
The Deputy Speaker (Lord Brougham and Vaux)
My Lords, I now call Amendment 11A. I have to advise the House that if Amendment 11A is agreed to, I cannot call Amendment 11B by reason of pre-emption.
Amendment 11A (as an amendment to Commons Amendment 11)
Lord Lucas
Lord Lucas
In moving Amendment 11A I shall speak also to the other amendments in my name in this group and, indeed, to one that does not appear in the groupings list, Amendment 17G, unless the list has been amended subsequently, as this amendment is clearly part of the same series.
I start by declaring an interest: I run the Good Schools Guide. It seems to me that the Good Schools Guide is clearly going to have register under these clauses. I am not going to address myself to the virtue or otherwise of this approach to press regulation—I am sure that others will do that better than I could. I am going to confine my remarks to, “Well, if the Government are going to do it this way, how could they do it better?”. As far as I understand it, the procedure today is that, as with the other groups, we will deal with everything as a whole. But if we get to the point where we are faced with a widespread disagreement with what the Government are doing and an unwillingness to listen, we have the option of re-debating each of the amendments one by one when we reach their place in the Marshalled List if the noble Lord whose amendment it is chooses to move it.
The crucial thing from my point of view is exactly what the Government intend to do with their manuscript amendment. I was comforted very much by what the noble Lord, Lord McNally, said—that this is essentially a device to make sure that the Commons has Easter to think through exactly how to deal with small bloggers and, given the width of the Commons’ powers, also to make any other necessary changes to these clauses. Therefore, if we are dealing with small amendments and things we think need further thought, that government amendment is enough to enable these to be achieved, and therefore all we need to do is speak to the Government today and, over the next three weeks, good sense will gradually percolate through and result in the Commons—when the Government’s amendment comes back to us—having taken the appropriate action elsewhere within this group. I hope that that is the correct understanding. I am sure that my noble friend will confirm if that is the case.
I start with Amendment 11A. I understand what my noble friend says about the purpose of the lines that I am seeking to take out—they are to deal with circumstances when the regulator has gone doolally—but I think that this is the wrong way to do that. I can see that as a possibility, but by doing it this way the Government are introducing uncertainty into the whole question of whether exemplary damages apply to a publisher. By joining a regulator, you can exempt yourself from exemplary damages. You sign up to the regulator, you do things its way and you are not in danger of exemplary damages. You do not have to get insurance against exemplary damages—which is not exactly going to be cheap—and you know that you have gone down the road that Leveson has recommended.
By introducing this uncertainty, saying that the courts can overturn your exemption, you are inviting every opportunist attacker to have a go at you, to see if he can tip you into exemplary damages. I cannot see that introducing that level of uncertainty, danger and risk in a procedure which is supposed to encourage people to sign up to avoid that risk, is the right way of doing it. If we are worried about the regulator going native then we need to provide for that in the charter and provide some way of bringing a regulator back to where they should be. Indeed, I suspect that if we had that then it might well be that Parliament would legislate again anyway. Surely this added uncertainty is not the right way to deal with the problem.
I turn to the next amendments in my group, Amendments 17C and 17G. The object of these paragraphs is effectively to force publishers to use arbitration. I have two objections to that. The first is that there ought to be a real incentive for those who offer the arbitration, for the regulator, to make it good and something that publishers want to use. If there is no such incentive then there is the tendency, as exemplified in Australia for instance, for the arbitrator to start to get really rather eccentric views on what publishers should be doing and to seek to widen its own authority by pushing the boundaries and the rules in ways which I am sure Parliament is not currently envisaging.
It seems to me best in principle that an arbitration, if that is offered, should be offered freely. I am sure that those like me who have had some experience of the uncertainties of the court will go for arbitration first as a matter of course if it is well done—and no reason why it should not be.
Secondly, however, there are many cases in the world of publishing that are seriously complicated things. They can be dealt with by arbitration but actually are far better dealt with by the courts. Surely we want to allow the decision to continue to be made by either side in the argument that a particular case would be better dealt with by a court, with the additional powers and procedures that courts have. I cannot see why we are effectively ruling that out by this particular pattern of penalties.
We come to my amendment to Amendment 18, which is to take out subsections (3) and (4). I think that I am proposing this amendment because I do not understand the wording of those clauses. I understood my noble friend when he addressed this and said that, clearly, he wanted to see the Huffington Post included as a publisher. But it seems to me that subsection (3) removes, at least if not the Huffington Post in the exact way that it operates, many Huffington Post-like potential publishers from the scope of “relevant publisher”. It says:
“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for content of the material, if the person did not post the material on the site”—
in other words, if the material appeared on that site by another agency.
Well, fine; but suppose the publisher—whatever they be called; “Comment is free” would be a pretty good example—had offered payment to the person who posted that article on the website, or had commissioned it, or had merely given permission for it, as one has to with “Comment is free”. You cannot just post something on that site; you have to get its agreement to posting it. Effectively, in the likes of “Comment is free”, you are creating a newspaper, but it is not made up in the usual way; it is made up of unpaid—although there is no reason why they should not be paid—contributions from outsiders. They may well have been moderated, as is allowed in subsection (4), which effectively means edited. Permission has been given and sometimes contributions are sought, in that they might say, “We would like something like that—who shall we ask to make the posting?”. The wording of subsection (3), as it is now, allows some very major businesses to escape this set of clauses entirely. They may not exist at the moment but, if you allow them to exist under this clause, I think that they will get through. That may be my misunderstanding of how the wording operates, but it certainly seems the case to me.
Amendment 19A is my original take on how to deal with the small bloggers problem. Essentially, most publishers of any ambition are going to have to join this regulator, and my noble friend clearly expressed the intention of the Government and Lord Justice Leveson that this should be the case. But a lot of these publishers, particularly at the early stages of their existence, when they are pretty sharp-edged and contentious, do not have much income. They survive on the sheer effort of a few individuals, who may scrape a living through journalism elsewhere, or do something else to keep body and soul together, but are not earning a lot from the publishing enterprise that they have founded. If the regulator charges a large fee for annual membership or charges little bloggers full fees for access to the compulsory arbitration service, we are effectively creating quite a high barrier to entry for new publishers. We are saying that they will have to find £100,000 or £200,000 to deal with those charges before they are allowed to become a publisher.
I am sure that that is not the Government’s intention, but it is one of the reasons why their own amendment does not go far enough, and dealing with this issue is probably a matter for the charter and not for the Bill. But it is important to make sure that we are not in this Bill introducing a barrier to entry for new publishers, who will generally feel obliged to register. Unless there is a very clear moment when they transition from being a small blogger, in the words of the government amendment, to a not small blogger, they will register early for their own protection. But if they face the sort of fees that a vexatious litigant could use to really punish them, just by putting them through the procedures, we will put in place a real barrier. I am sure that my noble friend realises that there are people around the world with whom you can get into severe difficulty if you say what you think about them, such as the Scientologists. That is not an uncommon feature, and we should not create a barrier for entry into such controversial and, in the overall scheme of things, worthwhile activities.
My other amendments, Amendments 131B and following, are slightly further on. I am sure that this is my misreading, but it seems to me that there is nothing in the wording that exempts the New York Times, or Le Monde, from having to register. We are going back to our imperial habits and stretching our net across the world. They are certainly publishers of news on a large scale about the United Kingdom, but they are surely not intended to be caught and have to register just because they choose to report what is going on in these islands, on page 59. If that is the intention, I feel that it is the wrong one.
The second part of Amendment 131B is really a companion to the limitation of fees and costs for small publishers. If the regulator has to run at a loss on small publishers, subsidising their fees and arbitration costs out of the fees and costs charged to larger publishers, it may decide that it really cannot be bothered and say, “You’re not big enough yet—go away”. If the regulator says that to you at the moment, you are caught, because you cannot join the regulator and, therefore, you are in for exemplary damages, without the option. I do not think that that should be the case.
Lord Soley
My Lords, I shall address this matter fairly briefly. I congratulate the Government on having moved as they have, and the noble Lord on his opening comments.
I want to make two points, but they are quite important ones. What is welcome and what we need to remember when we discuss these issues is that there is a world of difference between an individual who might say something factually incorrect and even insulting as an individual and a very large-scale international organisation such as News International doing the same thing. That is really where this problem has come from. People reacted to Leveson from the press side by saying that it was an attack on 300 years of press freedom, but that is nonsense. Press freedom was about small individuals and small groups fighting for the right to publish their views, and that remained the case until quite late in the 19th century, when the press barons emerged and these large-scale and powerful organisations developed. That is when it became difficult, because you could no longer feel the same about an attack by an organisation such as News International that was factually incorrect and severely intrusive, and that of an individual. That sort of balance needs to be kept in mind.
When I listened to the Minister’s opening comments, I felt that the Government were aware of the difference between the large and small organisation. But it is a problem for the small organisation. I started a blog in, I think, 2003, then came here and converted it to “Lord of the Blog”, and then it became “Lords of the Blog”, which is still operating, and is run by the Hansard Society on behalf of the House. I think that it is relevant—and this refers in a way to some of the comments of the noble Lord, Lord Lucas—and we need to be aware of the impact on charitable organisations and the smaller groups.
My second main point is that we need to review the legislation over a period of time. Part of the reason why we need to do that is the rapidly changing technology; it is so fast and so dramatic that it is difficult to keep up with it. I do not believe that all the press will suddenly go out of business because of the internet, but they are under more severe financial pressure because of it. Frankly, good newspapers are likely to survive—and likely to survive also because of their online material. We have to break away from the old culture whereby, if you felt that you could not publish a story, you got someone to put it on the internet and then, lo and behold, it suddenly appeared in News International newspapers, or wherever—and anyone could have put it on. It was easy to get round the rules.
As someone who set up those blogs, I would have welcomed at that time some sort of code that was external to what I was inventing myself. The noble Lord, Lord Lucas, said that you may be threatened by that. He may be right. I do not want to disagree with a great deal of what he said as I have a lot of sympathy with it, but I think he may be overafraid of this. When I started the blog in 2003, I was not concerned about individual attacks on me—any MP gets used to that fairly quickly and takes the rough with the smooth—but I was concerned about attacks on third parties or statements about third parties. We saw a dreadful example of that recently with the challenge to Lord McAlpine. In my view, none of this regulation threatens good investigative journalism. Indeed, I gather that the BBC programme tonight on Boris Johnson will be pretty critical and that is a regulated media outlet, so we should not be too concerned about this issue. However, vast changes are taking place.
To give another example, after the Iraq war, at the request of some Arabs in my then constituency, I set up the Arab-Jewish Forum, which was essentially a conference organising group, but I have recently converted it into a blog organisation for Arabs and Jews in this country, although, inevitably, it will go worldwide. In doing that, I am worried about regulations. A group of Arabs and Jews will regulate it. I will also keep a close eye on it although, as someone of neither Jewish nor Arab heritage, I will be less good at that than the moderating group. It would be good to have guidelines on what to do if something is factually incorrect. Although what we are discussing is not directly relevant to that issue, it underpins it and may indicate a way forward in dealing with the emerging internet communications, which will replace newspapers to a large extent, although not completely, in my view. We will then need constantly to review the legislation.
I carefully followed the speech of the noble Lord, Lord Lucas, in which he raised important issues, with which I have sympathy, and to which I wish to add two comments. First, an organisation may value being a member of a regulatory body as that gives you some guidance, even if it is not a complete code, and a structure within which to work. I ask the Minister to address my next point when he winds up. Secondly, it is very important that we develop a way to review this legislation over time given not just the complexity of setting up a regulatory body for the press for the first time but the fact that the technology is changing so fast it is very difficult to keep up with it.
Lord Skidelsky
My Lords, I would like to speak to Amendment 11B and a group of consequential and related amendments, and I am sorry not to have got to my feet quicker. These amendments seek to implement the Leveson report as Lord Justice Leveson provided for—no more and no less. I broadly welcome the Government’s Amendment 11 and the Minister’s explanation of it but would welcome assurance on a number of specific points.
There are three amendments on exemplary damages: Amendments 11C, which provides that the existing common law test does not apply in this case; Amendment 11D, which provides that vicarious liability should apply in this form of exemplary damages; and Amendment 13A, which provides that the court will have regard to the means of a defendant when making any award. It is very important that the law is clear that for exemplary damages to apply, the conduct does not have to be carried out with a view to a profit and with a deliberate disregard of an outrageous nature of the claimant’s rights; in other words, there are two alternative tests and not one. The Government’s amendment is unclear on that matter and I should like clarification on it.
Amendment 17E makes clear that to benefit from costs protection the publisher would have to participate in the self-regulator’s arbitration scheme. Amendment 17J provides that the current hold on the commencement of Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act in respect of publication proceedings will remain until a way forward is found. In relation to this, there will be cross-party talks in which Liberal Democrats and Conservatives will be able to take different positions. The reason for that is that Sections 44 and 46 of LASPO abolish the recoverability of success fees for the loser and would have disastrous effects on media claimants such as the Dowlers and the McCanns. I look forward to hearing from the Minister what the Government propose to do about the effective elimination of a success fee.
Two further amendments where assurances are sought are Amendments 19C and its consequential Amendment 19D, which concern the inclusion of data protection actions within the definition of publication proceedings. Amendment 19E provides that the Information Commissioner will take into account membership of an approved regulator when considering the exercise of his powers. In both these cases, we understand that the Minister will be bringing these back as part of the post-Leveson data protection consultation. We seek the assurance that decisions on this matter will be subject to cross-party talks in which Conservatives and Liberal Democrats will be able to take different positions.
Amendment 19B would require that the recognition panel which approves the self-regulator is subject to the Freedom of Information Act. No one would expect this body to act in secret. I seek an assurance from the Minister that the relevant special interests would be promulgated in good time for the start of its work.
Amendment 131A concerns relevant publishers which hold broadcasting licences. We seek assurance that this is not intended to cover the whole publishing activity of such licence holders but only their broadcasting activity. As regards Amendment 11B, which deals with the exemption from immunity of self-regulated newspapers to exemplary damages, I understand that a further amendment is to be agreed to this clause. Therefore, I need say nothing further about it and it can be considered in another place.
Amendments 17A, 17B and 17F would enable bloggers and small publishers who decide to join a self-regulator to obtain the costs protection that they deserve on the basis of it providing a low-cost arbitration service. I understand that this is the subject of continuing cross-party discussion and will also be dealt with in another place. Other noble Lords will have something to say on the position of bloggers and the need for small publishers to be excluded from the definition of relevant publishers. That has already been alluded to. I merely commend my two Amendments 18A and 18B as a contribution to the debate.
Baroness Bonham-Carter of Yarnbury
My Lords, I speak in favour of Amendment 11. We need it because we need the Leveson cross-party agreement on press regulation and because we need a raucous, unfettered press, but one that does not prey on the vulnerable and the innocent. I believe that we have achieved this balance through the proposed royal charter, and we have achieved it with all-party consensus, thanks in part to the persistence of my right honourable friend the Deputy Prime Minister. As part of that, the three parties agreed proposals on exemplary damages and costs designed to provide incentives for publishers to join the independent press regulator, as set out in these amendments.
I have been disappointed, if not surprised, by the response from some sections of the press to the cross-party agreement. In our debate on Monday, my noble friend Lord Fowler referred to that great practitioner of investigative journalism, Sir Harry Evans, and to a speech he made recently in which he abhorred the negative response to the Leveson report, in particular the suggestions that it was an attack on the freedom of the press. The freedom of the press is, as he said,
“too great a cause, too universal a value to a civilised society, to be cheapened as it is in the current debates. Every year upwards of a hundred journalists, broadcasters and photographers die in the name of freedom of the press”.
My great friend, Marie Colvin, was one of them. She died because she so passionately believed in making public the stories of the forgotten. In the case of her last despatch, it was the people of Homs. She knew about state control of the press and experienced it in East Timor, in Chechnya, in Sri Lanka and, finally, in Syria where the state targeted the media centre she was working from and killed her.
The royal charter and its independent press regulator, properly underpinned—to use that very unhappy term—will mean the end of unethical work practices and achieve a proper environment for journalists to ply their important trade. It protects both the freedom of the press and the rights of the individual.
Lord Black of Brentwood
My Lords, I declare an interest as executive director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I want to speak to Amendments 11 to 19. This group of amendments covers issues that are wide ranging and, as the noble Lord, Lord Lucas, so ably demonstrated, extremely complex. They go to the heart of some fundamental issues of law and justice, impinge on matters which are central to the European Convention on Human Rights and impact on the nature of investigative journalism. To echo some of the comments that were made at the start of business, it cannot be right that they are introduced after barely two hours of debate in another place, at the tail end of a Bill with only a handful of days before the end of the legislative Session, and in a way which does not allow for proper scrutiny.
On the radio last week, the Deputy Prime Minister said that the meeting late last Sunday night to agree on issues of press regulation,
“focused on technical legal definitions of what represented exemplary damages. It dealt with a tiny, tiny piece of the jigsaw ... It was about filling in one piece of the canvas”.
That statement shows how very dangerous this whole issue is because important issues that relate to freedom of speech were treated simply as a,
“tiny piece of the jigsaw”,
agreed not with the industry that is going to be affected by them but with a lobby group, and they are now being pushed through at breakneck speed. The amendments from the other place are wrong in principle and fundamentally flawed. They are almost certainly contrary to European law and so will collapse or be struck down. They deal with problems of an analogue past and are, in the words of the Guardian, “illiterate about the internet”. They are a constitutional nightmare. This late-night legislative fix will end up bringing discredit to us because we should have spent time analysing, scrutinising and amending them.
It has been argued that these issues were examined by the Leveson inquiry and are a key part of the complex system of media regulation he devised. That is not the case, however, and this House has to understand that. These far-reaching proposals have had no analysis or study anywhere and certainly not by Leveson. I understand that criticising Sir Brian Leveson is akin to criticising Florence Nightingale, but his inquiry utterly failed to scrutinise the key legislative issues that arose from it. As the Economist described it this week, aspects of this controversial report were just plain “sloppy”.
Leveson never invited evidence on statutory underpinning or published a draft statute to be examined in detail, and never looked at the massive implications, particularly for the regional press, of the establishment of an arbitration service. Crucially for this group of amendments, he never looked in detail at exemplary damages. He never invited or received submissions. The only reference I can find in the acres of evidence was from Ofcom, which suggested he might look at,
“procedures to give courts power to penalise parties ... in legal cases where the party has not taken account of the complaints-handling process offered by the new body”.
Ofcom then adds that its,
“experience in fairness and privacy cases has not led us to believe that it is necessary to have such powers. It would inevitably lead to more litigation”.
This is hardly a ringing endorsement.
Noble Lords should also know that Sir Brian devoted just four paragraphs of his 2,000-page report to the issues before us, on the basis that they were “worthy of consideration”. In his report, he says that the matter has been,
“fully discussed by the Law Commission and I see no value in repeating their argument”.
The Law Commission report, which he used as a basis for a finding that exemplary damages were necessary to make his system work, was published in 1997 before the enactment of the Human Rights Act which changed the law in this area. There would have been no point trying to, in his words, “repeat the arguments” as that Law Commission report, which was supported only by a minority of those consulted and was inconsistent with the conclusions of the Supreme Court Procedure Committee chaired by Lord Justice Neill in 1991 recommending abolition of exemplary damages, was shelved at the time and has never been accepted. The proposals it contained on exemplary damages—the same ones we are looking at today in this group—were recently dismissed in the leading textbook on the law relating to damages as,
“a retrograde step, with its inevitable and twin results of allowing the civil law to enter the very different domain of the criminal law and of providing windfalls for claimants which are in truth unmerited”.
Before moving on to some detailed issues, I want to deal with the point that will be made that I am just tilting at windmills and that no one has anything to fear if they are part of an approved regulator. This is the so-called “incentive”, the carrot and stick to provide statutory support to underpin a regulatory system. Regrettably, that argument is a mirage, because the way this legislation is structured means that membership of a regulator is not a complete protection against exemplary damages and costs orders. I am thinking in particular of proposed new subsection (3) of Amendment 11. While the Bill provides that exemplary damages should not generally be awarded against a “relevant publisher” which is a member of an approved regulator, the court can disregard this prohibition and make an award of exemplary damages in strikingly wide circumstances that render the apparent protection of being a member of a regulator entirely illusory. All the court needs to do is to be satisfied either that the regulator when looking at a case behaved “irrationally”— unlike the Minister I do not think that is a very high bar for some judges—or that it would,
“have made an award of exemplary damages ... against the defendant”,
even though it was a member of the regulator.
That is compounded by the new clauses in subsection (2) of Amendment 17 on awards of costs—which are the real issue in cases like this and which could have a far greater impact than damages themselves—which mean that the court can award costs against a member of the regulator where the issues could have been resolved by the regulator's expensive arbitration service or it is,
“just and equitable in all the circumstances”
to award costs against the defendant. In other words, there are so many loopholes that membership of the regulatory body might be largely irrelevant.
As structured, the Bill does not provide any form of carrot and stick: in fact, it provides a disincentive to membership because it establishes a system of double jeopardy. A publisher could be part of an approved regulatory structure, for which it will, as the noble Lord, Lord Lucas, said, have to pay a lot of money along with exposure to fines, and then it could still face the prospect of exemplary damages and crippling costs in court. Why on earth should publishers do that and face paying twice? I fear that this Bill makes it less likely that publishers would want to join an approved regulator. Some smaller publishers in the regional and periodical press, in particular, may as well just take their chances and stay outside. If the Government want a new regulator with universal coverage—which is absolutely right—this is a bizarre way of going about it.
I am not a lawyer, but I have the benefit of an opinion from the noble Lord, Lord Pannick, Desmond Browne QC and Anthony White QC, which makes clear that the provisions contained in the amendments to this Bill are likely to be unlawful because they single out for punishment a particular category of defendant rather than a particular kind of conduct. As the opinion states:
“This is particularly objectionable where the category of defendant singled out includes the press. To punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press”.
Because the proposals will catch many publishers, from individual bloggers to NGOs, they go beyond the recommendations of Leveson. This Bill is not even itself, in the jargon, “Leveson-compliant”.
We could face the absurd situation whereby a newspaper undertook an investigation in conjunction with a programme such as “Dispatches”; this is not unknown. Both could publish the material at the same time on different platforms, one online and the other on television. If there was a legal action on grounds of defamation, the newspaper, whether or not it was a member of an approved regulatory body, could be exposed to crippling costs and damages. However, under the amendments the TV programme that broadcast the same material would be exempt. That is a completely untenable position as a matter not just of law but of fundamental justice.
As the noble Lord, Lord McNally, mentioned, there is a great deal of jurisprudence in English case law which sets out the case against exemplary damages. They have been described as anomalous and indefensible in judgments from, among others, Lord Diplock, Lord Devlin and Lord Reid. Indeed, in one of the most recent cases where this issue involving the media was raised—that of Max Mosley v News Group Newspapers—Mr Justice Eady, who some say is no friend of newspapers, concluded that exemplary damages,
“could not be said to be either ‘prescribed by law’ or necessary in a democratic society ... There is no pressing social need for this. The ‘chilling effect’ would be obvious”.
That point about the chilling effect is extremely important because these clauses—as the noble Lord, Lord Lucas, rightly said—import a huge amount of uncertainty into the law; and uncertainty is the enemy of investigative journalism. Why should newspapers pursue a story that could leave them exposed to exemplary damages and costs unless they are operating against the background of a law that provides certainty?
The amendments allow for an award against a publisher where conduct is judged to be “outrageous”—as described in subsection (6) of Amendment 11—or
“such that the court should punish the defendant for it”.
Yet legal precedent rules that the use of this test for outrageousness is “far too vague”. Lord Diplock, in a wonderful phrase in one ruling, rejected it as being merely one of,
“a whole gamut of dyslogistical judicial epithets”.
Given that almost all publication of information concerning an individual engages his or her Article 8 rights—those of privacy—the focus of any action will inevitably revolve around whether a defendant's conduct was “of an outrageous nature”—something on which views will differ. Uncertainty and unpredictability in the area of freedom of expression are wholly undesirable.
There are further problems that will chill investigative journalism. First, subsection (4) of Amendment 11 gives the court power to look at a publisher’s “internal compliance procedures” to see whether material was obtained “in an appropriate manner”. That will invite claimants to include in legal cases questions about how information was obtained, with massive repercussions for confidentiality of sources. Journalists and publishers will inevitably be pressed to disclose information about sources in an attempt to avoid crippling financial penalties. It will positively discourage whistleblowing.
Secondly, there is the issue relating to costs in Amendment 17. The Bill turns on its head the principle that generally costs follow results. If these provisions become law, publishers—and this is particularly crucial for the local press—who do not agree to arbitrate a dispute, something which can be very costly, face the prospect that when they are sued in a libel or privacy case, they may have to bear the entire costs even if they are successful. This issue does not affect the traditional media, as is highlighted by the amendments of the noble Lord, Lord Lucas. He made that case extremely well.
The case against exemplary damages and costs orders in English law is overwhelming, and the implications are, as I have tried to set out, disturbing. However, even if this House decides to go down that road, it will face an even stiffer test in Strasbourg, where I am sure this Bill will eventually founder because of its incompatibility with Article 10 on freedom of expression.
I mentioned the case of Max Mosley, which ended up in the European Court where this issue of exemplary damages was considered. The Court concluded that it,
“is satisfied that the threat of ... punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.
We should take real note of the what the court said about how these measures would impact not on celebrities who have for too long been the focus of this debate but on political reporting.
Furthermore—and this is an important matter for Europe—the Bill discriminates between substantial commercial publishers whose business model allows them to afford membership of an approved regulator and small publishers or bloggers, such as those mentioned by the noble Lord, Lord Lucas, which cannot afford membership or may regard it as unnecessary or undesirable. That discrimination is impossible to justify under Article 10.
Everything about these proposed new clauses is wrong. They were cobbled together late at night over pizza, with no thought for the legal and constitutional issues involved. They exhibit no understanding of the digital world into which all publishers are moving. They are alien to decades of English law, and almost certainly illegal under European law. They would provide a serious blow to investigative journalism. They would disproportionately impact on smaller publishers and, in particular, the regional press. If ever there was a case where this House should have asked the Government and the other place to think long and hard, and to take their time studying the massive implications of what is being proposed, it is this. However, we do not have the ability to do so. I may be a lone voice making these points, and the cross-party deal with Hacked Off on its proposals means that these amendments will inevitably become law. I understand that. However, my noble friend is an honourable man and I ask him simply to pause and think again.
Baroness Kennedy of The Shaws
My Lords, I support the amendments and welcome the framework agreed by the parties. It is not perfect Leveson, but it is about 80% or 90% Leveson. In fact, the 10% to 20% that is not Leveson is a compromise in favour of the press, and we should be clear about that. It cheers my heart to hear those who have absolutely railed against the Human Rights Act, the European Convention on Human Rights and the court in Strasbourg suddenly praying in aid that great wealth of rights law, now that those people are confronted with the possibility that the press might have to be properly regulated.
First and foremost, only a week ago last Monday night, we created an entrenchment clause to protect the charter from meddling from behind closed doors by politicians, privy counsellors and Ministers. It was a way of using law to protect press freedom; indeed, I hope the Defamation Act will do so, too. The other way in which we can protect press freedom is by returning to high ethical standards. That is what is forgotten by those who hyperventilate about the great horrors of a regulatory system. It beggars belief that the noble Lord, Lord Black, who sat on the PCC for years and was basically hugger-mugger with those who were not really interested in what was happening to the victims of press excesses, now speaks about the “chilling effect” of this regulatory framework.
The costs element in this new arrangement is an important aspect of the Leveson incentives and is at the heart of the matter. The problem with the PCC was always that it had no teeth, and one had to find a way of dealing with that. However, as for the business of exemplary damages, perhaps we should make it clear that they would be used only in the most exceptional circumstances where the most egregious conduct took place. Almost invariably, it would go hand in hand with criminality of some kind. The criminality can be dealt with in some ways, but we know that the civil and defamation courts should have at their disposal some way of registering the horror of what happens to victims.
Noble Lords should have in mind circumstances such as when medical information has found its way into the hands of journalists that discloses, for example, that a woman has had an abortion, that someone has had psychiatric treatment, or that someone has a disease such as Huntington’s chorea that will manifest itself at a certain point in their lives. How dare the media expose such information? It is right that the courts should be able to respond appropriately when such things are done. We know that, except in exceptional circumstances, they are going to be dealing only with those who refuse to sign up to being part of this regulatory framework. This hyperventilation about exemplary damages is yet another manifestation of the huffing and puffing that we have seen in the press recently about the Rubicon being crossed and the end of freedom of the press as we have known it for hundreds of years, when the reality is far from that.
This is a moment for this House to reflect on the fact that over the past few months, while Lord Leveson was conducting his hearings and since he reported, there have been regular polls, and every poll conducted with the public showed that they want to see a proper regulatory framework. Indeed, all the polling indicates that the public support Lord Leveson’s report. More recently, as agreement has been reached across parties this week to create the framework that we are discussing tonight, all the polling indicates that the public want something of this sort to happen. So we should welcome it.
I am a human rights lawyer who believes strenuously in the freedom of the press, but I also have seen the horror of the impact on victims. They are not celebrities and the famous, but ordinary people. We in this House have to bear them in mind. That is what this framework seeks to do. I, like others, have concerns. I am worried about who will be given immunity and believe that we still need careful thought about who is covered by the immunities that we are talking about. I, like the noble Lord, Lord Skidelsky, want reassurances about freedom of information applying to these processes. However, we in this House should welcome the fact that somehow we are going to move forward on this and that we are not going to say that it is business as usual. Business as usual is not good enough.
Lord Phillips of Sudbury
My Lords, I declare an interest as having been for a few years a member of the appointments commission of the Press Complaints Commission and for 10 years on the Scott Trust, which owns the Guardian, the Observer and other newspapers.
I congratulate the three main parties and their leaders on coming to an agreement over what must surely be as difficult a set of issues as one could devise. No one in this House is mindless of the fundamental importance of freedom of the press in all its guises. Having said that, I am afraid that I reject the hypothesis very eloquently put forward by the noble Lord, Lord Black, that anything by way of control of the press is beyond the pale. The measures that the three leaders of the three main parties came to agreement on are profoundly sensible and, I believe, modest, and I think they deserve support.
I do not say that because the British public are expecting it. There are occasions when this House has to stand against the vast majority of the public if in all conscience we believe that they are wrong. We have done that many times in our history. However, I do not think that this is one of those times. This it not the thin end of the wedge, as is constantly said, because we will all be on our guard over the next few years to see whether what we intended comes about, and whether what we did not intend comes about. I have no doubt that the overwhelming sense, in this place and the other place, is such that if our hopes and expectations are not realised, we will do something about it, and that will be to protect the freedom of the press, not to grind away at that freedom.
I will make a couple of quick points. The first is that you could not have a more modest provision of exemplary damages than you have in this Bill. The noble Lord, Lord Black of Brentwood, if I may say so, did not give the full picture. He gave a telling account of the meaning of the word “outrageous”, but not the full context in which that word appears. New subsection (6) in Amendment 11 says:
“Exemplary damages may be awarded under this section only if the court is satisfied that … (a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”.
“Outrageous”, “reckless” or “deliberate” is an extremely high hurdle, and I think that judges can be relied upon to keep it as an extremely high hurdle. I do not share the noble Lord’s misgivings in that regard.
The second issue relating to exemplary damages is as follows. New subsection (2) in Amendment 13, on the amount of damages that can be awarded, is worth quoting in full. It says:
“The court must have regard to these principles”—
the ones mentioned earlier—
“in determining the amount of exemplary damages”.
The first of these limitations is that,
“the amount must not be more than the minimum needed to punish the defendant”—
not the minimum needed to adequately punish the defendant, or to sufficiently punish the defendant, let alone to effectively punish the defendant.
My noble friend Lord McNally might like to take that away and think about that, because it actually rather screws the Bill, if I can use that common phrase. It seems to me that £1 of damages would, on that definition, satisfy that test, because £1 is a punishment, even if it is utterly inadequate and rather laughable. There are no qualifications to that phrase. That is another reason why the noble Lord, Lord Black, and the newspapers, are getting overly concerned—let me put that kindly.
Finally, I make a point about the meaning of “publisher”, because the noble Lord, Lord Lucas, and others have mentioned the extent to which this could impinge on smaller publishers rather than the great national newspapers and so on. I am sympathetic up to a point, but I do not like, and I hope the House will not like, the provision in Amendment 18 that is headed “Meaning of ‘relevant publisher’”. Subsection (3) of the new clause says:
“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for the content of the material”,
and—this is the killer—
“if the person did not post the material on the site”.
In other words, if you are the operator and you did not actually post the offensive, outrageous, et cetera, material, you are free. That is quite inadequate.
If this provision is to be in the Bill, it needs to be expanded. This would allow a publisher or operator of a website to get away in the circumstance where, for example, the person who posted the awful stuff was a subsidiary company or a partner or was paid to put the stuff on the website. If you were a really malicious operator, you could think up a shell company in the Seychelles that could post the most dreadful stuff about a person or a group of people, and under this clause the operator of the website would not be liable. That needs looking at. However, as I say, all in all, I believe that, in this most difficult of circumstances, the Government, aided by the Opposition, have come up with a good set of provisions.
I end by asking my noble friend Lord McNally to tell the House, when he sums up, whether there is another example in our legal set-up where damages are dependent not on the offence but on the nature of the offender. This plays back to what was said by the noble Lord, Lord Black of Brentwood. I am concerned that it is legally unprecedented to punish not according to what you have done but according to who you are. I think that we should know that.
Lord Inglewood
My Lords, I should like to address a few remarks to my noble friend Lord McNally about the general scheme behind the provisions in the Bill on which he has to some extent helpfully elaborated already. In so doing, I shall go on from where the noble Lord, Lord Soley, left off when talking about changes in the digital world. At the start I declare an interest as chairman of the Cumbrian Newspaper Group, but I am not going to talk about any of those interests at all. However, noble Lords may know that I am also chairman of the Communications Committee of this House. I do not want to breach any confidence, but at one o’clock in the morning this coming Wednesday, the committee will publish a report on digital convergence. A substantial part of that report deals with issues around the topic we are discussing today.
I think I am allowed to say in public that one of the things the committee was very interested in is the phenomenon known as television-like material as defined in the European Union audiovisual media services directive. This is material which can be viewed through an internet protocol television set but it is not broadcast and it is not a website. Your Lordships will be aware of this service because my noble friend Lord Dobbs has just had a great hit on Netflix, which is an example of one of these businesses. It is a fast-growing and significant part of the media landscape. In the committee’s view, because of the way that regulation is being proposed for broadcasting, the press and websites, TV-like material falls completely outwith the various definitions and so is not going to be caught. The committee does not think that that is the right way to proceed.
I turn first to the specific provisions of the Crime and Courts Bill and the amendments we are discussing. In addition, looking at the structure of the draft royal charter, it seems that embracing TV-like material of the kind I have described is only going to be possible, in the words of the noble Baroness, Lady Kennedy, if the entrenched law can be amended. Is it wise to start off with a big lacuna in the scheme; that is, before the draft charter has even got on to the statute book?
I am not here to make any further point than to draw the attention of the House to what the committee considers to be a potential problem with the overall scheme of regulation in this area. If the provisions as currently drafted go forward, they will leave a hole through which people may be able to drive and coach and six.
Lord Allan of Hallam
My Lords, I want to make some similar points to those just made by the noble Lord, Lord Inglewood, and in doing so I should like to declare an interest. I work for Facebook, which is a website operator. The points around definition have been made effectively in the scope of the amendments and in the comments of my noble friend Lord Lucas. They exemplify how hard it is to define anything in this area. As the noble Lord, Lord Inglewood, and his committee have found in trying to draw out these definitions, the more one goes into it, the more one finds that in many cases it is an imprecise science. It is hard to define precisely what it is one intends to regulate and does not intend to regulate.
The comments of my noble friend Lord McNally were extremely helpful in clarifying the Government’s intention not to include a wide range of services or individual activities within scope and I picked up on two particular phrases that he used. The first was “press-like” and the clear intention to regulate such services, and the second was “future-proof”, in that these provisions should be future-proofed. Subsection (7) of the proposed new clause set out in Amendment 19 refers to the concept of “News-related material”, but nowhere does it talk about the format of that material. Referring to the point made by the noble Lord, Lord Inglewood, it seems on first reading that “TV-like” and “radio-like” services would be covered. The new schedule set out in Amendment 131 provides an exemption for those who are licensed under the Broadcasting Acts, but again what we see increasingly is the ability to launch services over the internet that are TV-like and radio-like, but where no licence is required. If the legislation is to be future-proofed, it is important to understand whether it is the Government’s intention to restrict this to services that we would regard as being press-like today—most people in common parlance would understand that as being primarily the printed word—or if in the future someone launches a video or audio channel that consists primarily of news-related material—the new online TV-type and radio-type services—it is intended that it should be included in the scheme we are debating today. This is an important clarification for the increasing number of businesses and individuals who would like to move into this field of activity and for the increasing number of consumers who would like to receive their news through these new channels rather than the traditional ones.
Lord Stevenson of Balmacara
My Lords, I am grateful to all noble Lords for participating in this debate, which has echoed a number of occasions on which we have been able to touch on these topics in the context of several Bills over recent months. We have not always stood opposite the noble Lord, Lord McNally, although he has been quite strong, particularly as we saw his cherished Defamation Bill begin to slip away from him. However, I think I see it looming in the background, and the noble Lord has cheered up again, which is nice. We also touched on them in the Enterprise and Regulatory Reform Bill, where we did a great deal of work with the excellent amendments tabled by the noble Lord, Lord Skidelsky. They were not moved, but they certainly raised the issues that we are considering today. Of course, we now have the Crime and Courts Bill before us, so there is endless flexibility, and long may that last. I should like particularly to thank the noble Lord, Lord Skidelsky, who has been tireless in tabling amendments that give effect to the detail of the Leveson recommendations and reinforce the fact that the royal charter and its statutory underpinning have been agreed by all three parties in an historic agreement.
We need to recognise that the debate on Leveson has moved on. The most important thing now is to be clear on what the government amendments intend to do and avoid any unnecessary scaremongering. I shall focus on a number of the amendments before us and, like the noble Lord, Lord Skidelsky, I should like the Minister to comment on how he intends to respond to them.
My first strand is on exemplary damages, but I have been sufficiently warned off by the noble Lord, Lord Phillips, even to go down this route. However, there are a couple of points that I would like the Minister to respond to. I understand that a considerable amount of time was spent in the all-party talks on the question of what happens to damages when it transpires that the facts of a case have changed in that the court has facts which were not available to the regulator. Can the Minister help us on this issue as it has happened in recent months? Can he confirm that this is a matter which will be returned to?
Amendment 11C clarifies that the common law gateway for exemplary damages will not apply. Can the Minister confirm that the “for profit” test is not required if the “outrageous” test is met? Amendment 11D makes it clear that a relevant publisher will be vicariously liable for wrongdoing by an employee or a person contracted to work for a publisher which results in liability for exemplary damages in accordance with the ordinary common law tests. Can the Minister confirm that further work will be done on this question? It is a key issue that is dealt with succinctly in the amendment tabled by the noble Lord, Lord Skidelsky. Vicarious liability bears on the morality and culture of the press. It is important that the Government should put on the record today that they agree with the noble Lord, Lord Skidelsky, and that they intend to return to this issue in the Commons to the extent that this may be required. The recent history, after all, shows that it matters. We do not want a situation where publishers literally have a get-out-of-jail-free card, and it would be strange if the media were to be in a privileged position in relation to vicarious liability compared with all other interests in this country. Lastly in this group, Amendment 13A is intended to reassure small publishers that, in deciding the amount of exemplary damages, the court will have regard to the means of the defendant. Can the Minister confirm that the Government will return to this issue when it is considered again in the Commons?
The second group of amendments that I would like to look at contains those amendments that are intended to make it clear that to benefit from cost protection the publisher would have to participate in the self-regulator’s arbitral scheme. With regard to Amendment 17E, the Government’s intention is that in order to benefit from cost protection the publisher would not only have to be a member of an approved regulator but would also have to participate in the scheme. There are those who have argued differently. Surely it makes no sense to provide benefits to publishers simply on the basis that they recognise that an arbitration scheme exists. The point here should be that it is the active participation by publishers in the scheme that entitles them to get cost benefits. In any case, as Lord Justice Leveson pointed out, an incentive to join an arbitration scheme is good for all publishers and will help them and the claimants. Can the Minister confirm that this is his understanding of the situation and that the Government stand ready to confirm this position in the other place?
Amendment 17J asks for clarification, as raised by the noble Lord, Lord Skidelsky, about the commencement of Sections 44 and 46 of the LASPO Act 2012, which was taken through the House by the noble Lord, Lord McNally, so he should know his stuff on this. I should be grateful for some confirmation about the issues that arise from that question. Amendment 19B would require that the recognition panel, which approves the self-regulator, is subject to freedom of information. This is an important matter which surely should be brought forward at this stage. After all, it is something that can be dealt with by secondary legislation. No one would surely expect that the recognition body wishes the power to act in secret. This really is important, so will the Minister give us an assurance that the relevant statutory instrument will be brought forward in good time before the regulator starts its work? Amendment 131A concerns relevant publishers which hold broadcasting licences. The drafting here is a little opaque. We seek an assurance from the Minister that a person who holds a broadcasting licence is excluded only in so far as they publish news-related material in the course of their broadcasting activities. Can the Minister confirm that this is not intended to cover the whole publishing activity of such licence-holders but only their broadcasting activity?
My Amendment 131F, which was put down earlier and is part of this group, has, I think, been overtaken by events. I refer to the extensive introduction which the Minister gave to Amendment 131BA, which provides for:
“A person who publishes a small-scale blog”.
I think it is meant to be a peg to allow for further discussion and debate for this event to happen in the House of Commons. On the basis of that understanding, for which I am grateful to the Minister, I will not press that amendment when the time comes.
Finally, there has been some talk about dates and the time that all this comes into effect. I should be grateful if the Minister could be very clear about what he understands the implementation date to be.
Lord McNally
My Lords, I am extremely grateful to all noble Lords who have contributed to what has been a very thoughtful debate. I should perhaps start with the intervention by the noble Lord, Lord Black, because I am not sure whether it was the case for the defence or a warning of battles to come. He said that Lord Justice Leveson was as immune from being criticised as Florence Nightingale. I would have thought that the lady would have got a fair old battering from the noble Lord, Lord Black, if his speech was anything to go by.
Looking round the Chamber and listening to the contributions, and following this debate right through, I have never been in any doubt that many of the politicians in this Parliament would literally lay down their lives for the freedom of the press. It is not the case, as has been suggested in some of the very newspapers over which the noble Lord, Lord Black, has influence, that this is some Orwellian plot against the freedom of the press. As my noble friend Lord Phillips said, if by chance we saw what follows as an attack on the freedom of the press, I believe that the people who would be most likely to leap to the defence of the press would be not some of the media barons but noble Lords in this Chamber tonight and Members in the other place.
Although it was a well thought out and well delivered critique, I regret a little bit that nowhere in the remarks of the noble Lord, Lord Black, was there any apology. There was no recognition of the law-breaking on an industrial scale, no understanding of how deeply wounded the victims of press intrusion have been and no recognition of the deep disgust of the general public, which is reflected in the opinion polls that we have seen. I understand the message that was delivered. He asked me to pause. I genuinely ask the noble Lord, Lord Black, to pause and think whether he could not go back to those with whom he has immense influence and say, “Rather than trying to wreck this, couldn’t we see if we could make it work?”. To my mind, the prize is a great one—a free press, but a free press operating to the highest standards of ethics and one that is law-abiding. I believe that that is within our grasp if we can work together on this.
Lord Phillips of Sudbury
Before my noble friend sits down, and I congratulate him on the legislative equivalent of a marathon, I ask him whether he sympathises with the view that to have 44 important and often complex amendments put together in one group—the third group today contained 85 amendments —is not conducive to the quality of scrutiny that the Bill deserves. I mean no disrespect to him.
Lord McNally
I appreciate my noble friend’s intervention. At one stage during my speech I began to have sympathy with Chancellors of the Exchequer. In many ways, of course, this is not an ideal situation. On the other hand, if you take into account Baldwin’s cri de coeur against the press—was it in 1932 or 1933?
Lord McNally
God bless you, sir. This is the great value of this House; you ask a question and you get an authoritative answer. Baldwin’s cri de coeur was 80 years ago. I was thinking while the noble Lord, Lord Black, was speaking that it is 20 years since David Mellor warned the press about the last chance saloon, and it is 10 years since I was told from this Dispatch Box that a very minor amendment was the slippery slope to a state-controlled press, so we have not been discussing entirely new and fresh issues.
We have done what we have quite miraculously, I think, because it has needed a leap of faith and a generosity of spirit from all three parties. The Prime Minister, the Deputy Prime Minister and the Leader of the Opposition have come together and given national leadership on an issue that probably would never have got through in any other way. This has its flaws but is still a way forward that has eluded Parliament, as I say, for 80 years.
Lord Skidelsky
Before the Minister sits down, may I have his assurance that, in the cross-party talks that will take place on a number of outstanding issues, Conservative and Liberal Democrat participants will be able to take different, independent positions?
Lord McNally
As one who has had the good fortune to watch the traffic of the cross-party talks, and who has a strong view that my noble and learned friend Lord Wallace of Tankerness is in line not for a knighthood but for a sainthood for his patience in those talks, I assure the noble Lord, Lord Skidelsky, that all three parties have shown a robust individualism in the talks but, thank goodness, have also shown the generosity of spirit that has made agreement possible. If we can get the balance right between clear, vigorous discussions and generosity of spirit, we will get this done. I do not know whether we are getting a fish in the boat or a ship to port but, whatever it is, I recommend it to the House.
Lord Mackay of Clashfern
Before my noble friend sits down, I have one question. He will remember vividly that the noble Lord, Lord Puttnam, moved an amendment to the Defamation Bill on Report, which this House carried. My noble friend anticipated at Third Reading that that would be dealt with in due course by an agreement that would supersede the amendment. The passage of time has fulfilled his prophecy, and I am sure we are all glad of that. I am assuming that now the Defamation Bill will be able to proceed, as it merits, to Royal Assent by the end of the present Session.
Lord McNally
Noble Lords cannot imagine the tingle in my shoulder blades when I realised that the noble and learned Lord, Lord Mackay, had risen to his feet. I thought, “My God! What question of law is he going to ask me to pronounce on?”. I am very pleased to understand that there is all-party agreement and that after the due process of whatever they do down the other end the Defamation Bill will be returned without the Puttnam amendment, although when the history of this saga is written, it will be said that the Puttnam amendment did its job. I am not so bitter about it, especially since the Bill is coming back without it.
Lord Puttnam
Nothing in the world will delight me more than to see the Defamation Bill passed in its original form.
Lord Lucas
My noble friend has been suspended above his seat for a longer time than the Maharishi Yogi ever achieved. At risk of prolonging that, before my noble friend sits down, will he confirm, in order that he might get his supper this hour rather than next, that the matters that the noble Lord, Lord Stevenson, raised in his speech will be under active consideration in the Commons before this Bill returns to this House?
Lord McNally
I will look at what the noble Lord, Lord Stevenson, raised, but I warn the House against the idea that what is going back to the House of Commons is a reopening of these discussions. We have said what we want to see passed, we have asked noble Lords to withdraw. I have explained. I do not want to mislead the House. The Commons will be able to consider only their amendments that have been amended by this House. For example, if we do not today amend Commons Amendment 14, that amendment will no longer be in play during the next round of ping-pong. We are not sending the Bill back to the Commons for another go. Quite frankly, that would be extremely dangerous. My reply was carefully crafted by many hands far more expert than mine in a way that I hope gives the assurances that were sought in raising the amendments, not least those tabled by the noble Lord, Lord Skidelsky, However, the way that ping-pong works keeps the debate very tight and I do not want to mislead the House that it allows a rerun of negotiations on this. To even suggest that would be a bad mistake.
Lord Lucas
My Lords, I am very grateful to the Minister for all the time he has taken on my amendments. I would quarrel with him in his interpretation of how ping-pong works. I spent time talking to the clerks at this end and in another place before I put down my amendments, and my understanding is that the other place has very wide powers to suggest amendments in lieu; it is not restricted to individual amendments. The Government’s amendment on small bloggers will allow amendments to be made at any other position within this group of amendments. I may be misquoting the clerks—I am quite capable of that—but that was what entered my brain as a result of the conversations I had before I put down my amendments. In particular, I should be sad if the conversations that I started on my Amendment 18C were not to have any result.
My noble friend doubtless remembers what a difficult performance a three-legged race is on school sports day. He has had to indulge in a four-legged race today with his left leg tied to the Labour Party and his right leg tied to the Conservative Party, and he has been finding it extremely difficult. He has provided an excellent illustration of the problem, dealt with by my noble friend the Leader of the House at Questions today, of reading out a pre-prepared speech when what had been said was something completely different. I said in my address to Amendment 18C that I felt that the way in which the Government had drafted this clause would allow large news organisations to create structures that were in no way subject to the Bill. My noble friend did not address that at all in his reply, because it had been pre-prepared and did not allow him to reply to the remarks that I had made. I particularly feel that the Government have not understood the way in which the world is moving on the internet, and have not allowed for the sort of structures that seem to be arising even now, let alone those that will come.
I hope that the Government will take advantage of the freedom that I believe that they have to think through the wording and ensure that they are giving themselves the powers that they wish. To come back to what my noble friend Lord Black of Brentwood said, we are trying to achieve a regulator here that will be participated in, agreed and effective. I am sure that another look at the questions that I have raised with Amendment 11A would consider whether introducing uncertainties in this way in the position of someone who registers is really the best way of getting people to sign up. Other than that, however, I am grateful for the answers that my noble friend has given. I beg leave to withdraw my amendment.
Lord McNally
That this House do agree with the Commons in their Amendment 12.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 13.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 14.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 15.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 16.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 17.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 18.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 19.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 20.
“Restraint orders and legal aid
(1) Section 41 of the Proceeds of Crime Act 2002 (confiscation in England and Wales: restraint orders) is amended in accordance with subsections (2) to (6).
(2) After subsection (2) insert—
“(2A) A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).
(2B) A relevant legal aid payment is a payment that the specified person is obliged to make—
(a) by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and
(b) in connection with services provided in relation to an offence which falls within subsection (5),
whether the obligation to make the payment arises before or after the restraint order is made.”
(3) In subsection (3)—
(a) after “subject to” insert “other”, and
(b) omit paragraph (c).
(4) In subsection (4), for “But an exception to a restraint order” substitute “But where an exception to a restraint order is made under subsection (3), it”.
(5) After subsection (5) insert—
“(5A) A legal aid exception—
(a) must be made subject to prescribed restrictions (if any) on—
(i) the circumstances in which payments may be made in reliance on the exception, or
(ii) the amount of the payments that may be made in reliance on the exception,
(b) must be made subject to other prescribed conditions (if any), and
(c) may be made subject to other conditions.
(5B) Any other exception to a restraint order may be made subject to conditions.”
(6) After subsection (9) insert—
“(10) In this section “prescribed” means prescribed by regulations made by the Secretary of State.”
(7) In section 459 of that Act (orders and regulations)—
(a) in subsection (4)(a), after “section” insert “41(5A),”, and
(b) in subsection (6)(a), after “section” insert “41(5A),”.”
Lord Taylor of Holbeach
My Lords, I beg to move that this House do agree with the Commons in their Amendment 20. I shall also speak to Amendments 21 to 23, 27, 30, 39 to 41, 45, 48, 50, 134, 135 and 139. This group of amendments deals with two aspects of the operation of the Proceeds of Crime Act 2002. Commons Amendments 22, 23, 39 to 41, 50, 134 and 135 seek simply to return the reach of the civil recovery scheme under the Proceeds of Crime Act to the position it was believed to be in before last year’s Supreme Court judgment in the case of Perry v SOCA. The amendments to the 2002 Act do not introduce any new policy and we are certainly not breaking any new ground.
The amendments mean that the courts will again be able to make civil recovery orders against property anywhere in the world, provided that there is a link back to this jurisdiction. For example, the High Court of England and Wales will be able to make an order in respect of a Spanish villa bought by a criminal who is resident in England, or with money made from unlawful conduct committed in England.
The amendments also make it clear that requests can be made to other civil investigations where the evidence is located overseas to help facilitate the civil recovery process. These Commons amendments also put beyond doubt that investigation orders can be made against persons as well as property to assist in identifying further property which may become subject to a civil recovery order.
There is one difference between the restored Proceeds of Crime Act and how civil recovery operated prior to the Perry judgment. In the absence of a legislative consent Motion, the new schedule inserted by Commons Amendment 139 provides that the relevant amendments to the Proceeds of Crime Act do not extend to Northern Ireland. This means that for many offences the civil recovery regime in Northern Ireland does not have the international reach of the civil recovery regime in the rest of the UK. This is regrettable, especially for the people of Northern Ireland. However, as with the National Crime Agency, which we debated earlier, we have taken a series of order-making powers to enable us to extend the provisions to Northern Ireland at a later date. Of course, any extension will require consent from Northern Ireland for matters that are within the legislative competence of the Northern Ireland Assembly.
The second issue addressed by the amendments relates to the provision of publicly funded legal aid to wealthy individuals whose assets are restrained under the Proceeds of Crime Act. The 2002 Act prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. Prior to the Proceeds of Crime Act, there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. However, this has led to a public perception that rich offenders with significant restrained assets are receiving vast sums of free legal aid when they could afford to make a contribution to their defence.
Since the Proceeds of Crime Act was introduced, a system of means testing for legal aid has been introduced for all Crown Court defendants. Those who can afford to pay some of or all their legal aid costs are required to do so. While anyone charged with a criminal offence and facing imprisonment or loss of livelihood is entitled to legal aid, I think the whole House would agree that if the defendant can pay some of or their entire legal bill, they should. After all, as we ask people on modest incomes to pay something towards their defence costs, it is only fair and reasonable that we ask millionaires to do so.
Commons Amendments 20, 21 and 27 amend Section 41 of PoCA to allow payment of a contribution towards, and up to the full amount of, defendants’ publicly funded legal aid costs. The detailed mechanism of how this will operate in practice will be set out in regulations subject to the affirmative resolution procedure. In framing such regulations, we will take into account the compensation paid to victims and the funding of further asset recovery work by law enforcement and prosecutors. We can already freeze criminals’ assets to make it easier to recover these ill gotten gains and compensate victims, but that often leaves the state picking up their legal bills, even if the offender has plenty of money to pay them as well. I hope that the whole House will agree that our aim should be to increase the overall amount of money being taken from criminals. The new clauses inserted by Commons Amendments 20 and 21 will enable us to do just that. I beg to move.
Baroness Smith of Basildon
My Lords, I will make a few comments, in particular in relation to the civil recovery process. The Government are right, following the Perry judgment, which left a huge hole in our powers to recover criminal assets, to bring forward the matter and put it on a legislative footing. However, we come back to the very strange position in Northern Ireland, which was confirmed by the Minister here and by Jeremy Browne, the Minister in the other place.
The primary purpose of the schedule is to ensure that it is not possible to make a civil recovery order against property located outside the UK if the unlawful conduct occurred in Northern Ireland but the property is located outside Northern Ireland. This is a strange position. If somebody lives in Birmingham, Manchester or London and they stash their ill gotten gains in another part of the world such as Dublin or Spain, there is a legislative remedy to seek an order to have the funds returned. However, if somebody lives in Belfast, Armagh or another part of Northern Ireland and they have their ill gotten gains just a few miles away across the border, they are completely outside the remit of the legislation of this country. Criminals in Northern Ireland will be able to invest their criminal gains across the border in the Republic of Ireland, just a quick drive down the motorway, with complete impunity as the courts will have no way of seizing those assets. I find that a shocking state of affairs to face.
I took some time yesterday and on Google maps followed the border along. I always think of the town of Belleek where, if you walk down the high street, your mobile phone signal beeps from one side to the other because the border is so close that it is switching from the Irish server to the UK one. If you follow the border along, it is very difficult. A criminal could buy land in that area. We do not assume that everyone in Northern Ireland is going to do this, but criminals will know that if they live in Northern Ireland but store the proceeds of their crime just a few miles across the border, they are going to be outside the remit of legislation and nothing can be done. I have to agree with Ian Paisley MP, who said in the other place that,
“the situation gives gangsters and criminals in Northern Ireland who are involved in serious and organised crime a free rein in part of the United Kingdom, and that must be addressed”.—[Official Report, Commons,13/03/2013; col. 373.]
Another worry that the Government must have is criminals moving to Northern Ireland because it will make it easier for them in that situation. It really is a shocking state of affairs.
I heard what the Minister said earlier and I understand his view that it is right to leave all the negotiations to David Ford. However, the point was made by the MP and others that this impacts on the United Kingdom as a whole and on places other than Northern Ireland. I feel that David Ford, for all the efforts he has made, deserves a bit more support from British Ministers in talking to the political parties, Members of the Assembly and Ministers in the Northern Ireland Executive to try and reach a solution. It damages us all if people can move to Northern Ireland to store their ill gotten gains from anywhere else in the world and nothing can be done about it.
Lord Taylor of Holbeach
I thank the noble Baroness. She has raised an issue that I have identified already. I should reassure her that the Government are giving all the support to David Ford that he would ask for. However, in many ways the solution to this problem clearly lies with the people of Northern Ireland because it is the Northern Ireland Assembly that controls the Northern Ireland Executive. Indeed, this is long term an unacceptable state of affairs because of the very difficulties referred to by the noble Baroness, Lady Smith. We are well aware of it. That is why we have tabled order-making powers. As with other measures where we have not been able to get a legislative consent Motion, we are making every effort successfully to deliver a legislative consent Motion. We will then be able to ensure that these particular powers apply to Northern Ireland. There are dangers if they do not do so.
Baroness Smith of Basildon
I am grateful to the noble Lord for that explanation. I do not want to detain the House. Is he saying that he does not see any role or any responsibility for Home Office or Northern Ireland Ministers in trying to resolve this position?
Lord Taylor of Holbeach
My Lords, I started off by saying to the noble Baroness that we have given all the help that we believe will be helpful to getting a solution to this problem. We would do nothing other than do all we can to ensure that we get the legislative consent Motion which a number of measures under the Bill require to bring Northern Ireland fully into the provisions of the legislation that is being provided for in the Bill.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 21 to 23.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 24.
“Extradition
Schedule (Extradition) (extradition) has effect.”
Lord Taylor of Holbeach
My Lords, I beg to move Amendment 24 and will speak to Amendments 25, 49, 136. I could use the wording that I have here, which is that I move that the House do agree with those amendments.
This group of amendments makes important changes to our extradition and deportation arrangements. Extradition and deportation are, of course, two entirely distinct legal processes and should not be confused. The fact that they are both being dealt with together in this group is simply for convenience.
Commons Amendments 24 and 136 amend the Extradition Act 2003 to provide for a new forum bar to extradition, to remove the Home Secretary’s obligation to consider human rights issues in extradition cases to non-European Union member states and to address several technical deficiencies in the 2003 Act in regard to Scottish devolution matters. Part 1 of the new schedule to be inserted into the Bill by Amendment 136 will amend the 2003 Act by requiring the judge at an extradition hearing to consider the issue of forum—that is, where the offence should be prosecuted. The Government’s decision to introduce a forum bar to extradition responds to the widespread concern within Parliament, as well as among the public more generally, that insufficient safeguards are currently built into cases of concurrent jurisdiction.
As noble Lords may be aware, there is an existing uncommenced forum provision in Schedule 13 to the Police and Justice Act 2006. This provision has not been commenced for good reason; simply put, we do not believe that it is fit for purpose. It would be cumbersome in practice and lead to wholly unacceptable delays in the extradition process. Instead, the Government’s forum amendments to the 2003 Act introduce a very carefully constructed provision, which has been designed to provide greater openness and scrutiny in relation to the question of where the most appropriate jurisdiction for trial is for those facing the possibility of extradition, while minimising delays as far as possible.
Our forum amendments allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice. In considering whether to bar extradition, a judge will have to consider whether a substantial measure of the alleged offences occurred in the UK and a list of other facts such as where the most harm occurred, the interests of any victims, the location of witnesses and the person’s connections with the UK.
In cases where the prosecutor has taken a formal decision not to prosecute in the UK, because there is insufficient admissible evidence available or because it is not in the public interest for such a prosecution to take place, a prosecutor’s certificate can be issued to that effect. This will prevent extradition being barred on forum grounds. The purpose of the prosecutor’s certificate is to ensure that the subject of the extradition request, who may be wanted for a very serious offence, does not escape prosecution altogether because a domestic prosecution is not possible, but the judge decides none the less to bar extradition on forum grounds. The amendments point to particular circumstances where a prosecutor’s certificate may be appropriate: namely, in cases where there is sensitive material which cannot be disclosed in open court because, for example, doing so would compromise national security or the investigation of terrorism or serious crime, or in cases where it is not in the public interest for such a prosecution to take place.
I believe that these measures will make our extradition arrangements more open and transparent and will ensure that, in cases of concurrent jurisdiction, due consideration will be given by the prosecutors to any decision about whether or not a person could be prosecuted in the UK. Under these new arrangements, prosecutors will know that they will be called upon to justify any decision in front of a judge in open court, not behind closed doors, as happens at the moment, and that any decision to issue a prosecutor’s certificate is judicially reviewable in the High Court.
Part 2 of the new schedule will transfer the discretion to consider final human rights representations from the Home Secretary to the courts. At present, the Home Secretary is obliged to consider human rights issues raised after a person has exhausted their appeal rights because she is a “public authority” for the purposes of the Human Rights Act 1998. By specifically preventing the Secretary of State considering whether extradition is compatible with the ECHR and transferring examination of such matters to the courts, the amendments will strike a better balance between two competing considerations: on the one hand, ensuring late human rights issues which are deserving of the court’s attention are properly considered and, on the other hand, ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last-minute, specious human rights points which can then be the subject of judicial review.
It is legitimate for the Home Secretary to play some role in the extradition process and that will remain the case. Ministers will still sign an extradition order for Part 2 countries: that is, those countries not covered by the European arrest warrant, to confirm that there are no statutory bars to extradition once it has been approved by the district judge. This covers issues such as the death penalty, ensuring people are tried only for the charges on which they have been extradited, onward extradition from a third country and transfers from the International Criminal Court. These are areas where diplomatic assurances are occasionally required and it is right that Ministers, rather than the courts, should continue to deal with these.
Part 3 of the new schedule makes provision in respect of Scottish extradition proceedings. In extradition proceedings in England and Wales, it is possible for a point of law to be appealed to the Supreme Court. In extradition proceedings in Scotland, the final court of appeal is the High Court of Justiciary. There is one exception to this in that there can be an appeal to the Supreme Court against the determination of a devolution issue raised in Scottish extradition proceedings. Devolution issues include questions as to whether the Scottish Ministers have acted in a way that is incompatible with the European Convention on Human Rights or EU law and so can arise in Scottish extradition proceedings. However, the 2003 Act does not take account of devolution issues in Scottish extradition proceedings being appealed to the Supreme Court. The Supreme Court has expressed concern that this could create problems in certain cases about the power to detain a person pending the outcome of an appeal to the Supreme Court and the time limit for extraditing a person following such an appeal.
The amendments provide that where the authority or territory that issued the extradition warrant seeks to appeal a devolution issue to the Supreme Court, the court has power to remand the person whose extradition is being sought in custody or on bail. Where the person is remanded in custody, the court may grant bail at a later date. The amendments ensure that the court has this power until the person is extradited or the extradition proceedings are discharged. They also set up the time limit for extraditing a person where a party to the proceedings seeks to appeal a devolution issue, raised in Scottish extradition proceedings, to the Supreme Court. Part 3 of the new schedule essentially ensures that a consistent approach is taken in the 2003 Act to appeals to the Supreme Court in extradition proceedings.
Lord Lloyd of Berwick
My Lords, perhaps I may speak to Amendment 24B, which is included in this group. Earlier today I suggested that Commons Amendments 24 and 136 should be postponed for the reason that these amendments, unlike all the others we have been discussing today, were not considered at all on the Floor of the House of Commons, and are only being considered at this very late stage in this House—one that is, let me say, barely full. This is not the way to legislate. It is also so unnecessary.
When I said earlier today that these two amendments should be postponed, I think I made it clear that the Government should withdraw these two amendments now and bring them back early in the next Session of Parliament when we can debate them properly both in the other place and here. I cannot see what the Government can possibly lose by taking that course. Yes, there would be some delay, but as it is seven years since we have had a forum bar on the statute book and it has never yet been put into force, I find it impossible not to ask what the hurry is now. Although there would be a delay of a few extra months, it would not make all that much difference, and at least it would mean that we had done justice to these very important amendments, which now we shall not be able to do.
I agree with almost every single word of the noble Lord, Lord Rosser, in his excellent speech, but he will not actually expect me to support the detail of his amendment. That is because we already have the Scott Baker review, which was published just under two years ago. What we ought to be doing today is implementing that review rather than legislating in its teeth and asking for another review in three years’ time. I repeat, what a way to legislate: to appoint a group like that led by Lord Justice Scott Baker to go into this question and then to ignore what it said. I believe that I am right in saying that the noble Lord, in proposing his amendment, did not once refer to Lord Justice Scott Baker’s report. Again, what a way to legislate.
I turn to the merits of the new forum clause and ask how it would fare judged against the Scott Baker report. I can say that it has all the defects of the 2006 forum clause, which was so strongly criticised by Lord Justice Scott Baker, with some more defects besides. The basic mistake is to believe that the question of where a defendant should be prosecuted when there are different countries claiming jurisdiction should be decided by a judge, on the grounds, so it seems, that that will produce a fairer result. I can understand that view but, in my strong opinion, it is not the way ahead. Where there are competing jurisdictions, the question can only sensibly be decided by agreement between the two competing jurisdictions. One of the main considerations in these cases must always be where the bulk of the evidence lies on which the defendant is to be convicted, if he is to be convicted. That is essentially a question for the prosecuting authorities. They will have all the material at their disposal. How is that material to be put before the judge? Are they to appear before the judge and argue the toss before him—is that what is proposed? If it is to be a judge, why should it be a judge in England rather than a judge in the requesting state? At pages 222 and 223 of the report, the authors give nine distinct reasons why a forum bar is not the way ahead. I would have liked to have heard the noble Lord’s answer to each one of those reasons. However, I will content myself with simply reading their conclusion, at page 228:
“However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another”.
That conclusion should have been accepted by the Government but it has not been.
That is only one of the reasons given in the Scott Baker report. Another, which I think the noble Lord has already touched on, is that it would necessarily generate satellite litigation. I will read what the report says the district judges, the people who decide these cases, had to say on that question:
“The evidence of the District Judges dealing with extradition cases was strongly to the contrary”—
in other words, against a forum bar. The report continues:
“They cautioned that if brought into force the sections would generate litigation and that it would be very difficult to control the evidence of the party seeking to resist extradition. For example, it will be contended that wide ranging disclosure of documents is necessary when an ‘all the circumstances interests of justice’ test has to be met”.
One of the many reasons why the 2006 forum bar was never brought into force was that it was thought to be too complicated. If the 2006 Act was complicated, how much more complicated is this forum provision, where we have prosecuting certificates of the designated prosecutors being questioned, under proposed new Section 19E in Amendment 136, before the High Court in judicial review proceedings? How is that going to speed up the process of extradition, which is the whole object of these proceedings? It is madness to think that it will; it will not.
Another reason that has been given—this is the last that I shall mention—is that enacting these provisions will automatically put us in breach of our international obligations. That is certainly a point which was carefully dealt with by the noble Lord, Lord Rosser, and I agree with what he said. In respect of category 1 countries, for example, we already have a system for deciding between two countries where there is a dispute as to where the proceedings should take place. That is known as Eurojust, and it is a system that is operating now and without any difficulty. If we pass a forum bar, we will have to opt out of Eurojust. Are we to be the only country to do so? No other country, so far as I know, has suggested anything similar to a forum bar.
What about the category 2 countries? Exactly the same applies as when we had existing extradition arrangements. Why should other countries which are not in Europe be satisfied with the decision of our court about which is the most suitable jurisdiction for the defendant to be prosecuted? Those are reasons which were given by the noble and learned Baroness, Lady Scotland, and they were absolutely sound. No answer to that objection has yet been given.
I come back to where I started. These are but three of the reasons why this forum will not work. I prophesy that it will not ever be brought into force. Like the 2006 Act, it will be found to be impracticable and actually impede the speed which is so essential in these extradition cases. I wish the noble Lord had accepted my suggestion that this matter should now be withdrawn by the Government and brought back again in the next Session when we could debate it properly. However, I understand that it is now too late to hope for that.
Lord Dubs
My Lords, earlier today the noble and learned Lord, Lord Lloyd of Berwick, and one or two other Members of this House raised the question of the Government’s procedure in this matter. I have to say that I cannot recall an instance where the Government have introduced a fundamental amendment not in Committee or on Report, but actually when the Commons were discussing the Bill and amendments to our amendments. There would have been plenty of time in the early stages of the Bill in either House for the Government to have introduced the amendment. I cannot understand why this seems to be an afterthought.
Governments usually do these sorts of things when there is a real sense of urgency, when there is a dramatic reason why they have to move quickly. I cannot for the life me understand why they felt it necessary to do this at the last minute. Having heard the Minister earlier today, I feel that he was caught. Had he been a Back-Bencher—and I hope he is not going to be a Back-Bencher as a result of all this—I suspect that he would have agreed with out arguments. However, being the Minister, he is rather debarred from saying on the spot that the Opposition or other Cross-Benchers are right and the Government are wrong; he cannot say that. However, in his heart of hearts I suspect that is what he may have been thinking.
It seems to me that this is not a proper way to treat either House of Parliament, when there is absolutely no reason why the Government should behave in this way. The difficulty we are in is that there is no easy way of testing the arguments because the rules of procedure for this part of the Bill, when we are dealing with Commons Amendments, give us a very limited opportunity to be critical. We do not have the flexibility that we have in earlier stages of legislation. We are caught in a position where we have a very serious matter, and where we cannot do justice to the process of scrutiny in order to come up with a better answer. The Minister may have said one or two things which are now going to be difficult to put to the test.
The Minister mentioned the death penalty. As somebody who is very keen on campaigning internationally to abolish the death penalty, I had understood that it was absolutely accepted practice by Britain that we would never under any circumstances let anybody be extradited to a country where there was no assurance that the death penalty would not be used. Why the Minister mentioned the death penalty, I do not know, but I hope that the existing policy will hold good.
Lord Taylor of Holbeach
My Lords, despite the criticism of noble Lords about the quality of debate that we might have on this issue, I feel that we have had an opportunity to discuss the matter in some depth. It forms part of the Bill that is before us as a result of the Commons amendments. It is our responsibility to discuss the Bill and it is my responsibility to encourage noble Lords to see these particular amendments through. I believe that they are in the interests of good governance and in the interests of this country. The measures we have introduced on the forum will make the extradition process more open and transparent. Making the courts the sole body to consider human rights issues, which has not been discussed much but is a very important change, will ensure that people are not able to abuse the system and delay extradition endlessly by raising specious last-minute human rights points which can then be the subject of judicial review. Together, our proposals will improve our extradition arrangements and, in my view, make them fairer.
The noble Lord, Lord Rosser, has asked my right honourable friend the Home Secretary to commission a review of our proposals and their impact on the speed of extradition procedures, as well as on our current and future extradition relations. This is the substance of his Amendment 24A. As the noble Lord will be aware, we commissioned a review by Sir Scott Baker. His report, referred to extensively by the noble and learned Lord, Lord Berwick, was a comprehensive and detailed analysis of our extradition arrangements. The findings of Sir Scott Baker’s panel were very carefully considered by the Government. He has helped us to come to a view about the changes that needed to be made to our extradition procedures, including those we have brought forward in this Bill, with a view to not only improving those procedures but addressing public and parliamentary concern about their fairness. I can assure the noble Lord that once the new forum bar is operating, these arrangements, together with other changes to the Extradition Act, will indeed be subject to the normal post-legislative scrutiny process, which was introduced by the previous Administration, three to five years after Royal Assent.
I now turn to Amendments 136A to 136C in the name of the noble Lord, Lord Dubs. As I have already said, it is important to improve the protections offered to individuals under the Extradition Act. That is why we have introduced our own forum provisions. However, the interests of justice demand that our extradition arrangements are properly balanced to ensure that, while there must be proper safeguards in place for those subject to extradition, our arrangements do not allow a person to escape justice altogether. Therefore it is important that the test for whether extradition should be barred on forum grounds contains no implied presumption against extradition, even where it is clear that no prosecution is possible or likely in the UK. If the Crown Prosecution Service or another prosecutorial body decides after proper consideration—importantly, that will now be tested in open court and I am pleased that the noble Lord welcomes that position—that a domestic prosecution cannot take place, extraditions should not be barred on forum grounds. Justice will otherwise not be done and potential victims will see their assailant, in some cases potentially a suspected terrorist, walk away scot free.
There has been concern from the noble Lord, Lord Dubs, about whether we can ensure that the bar does not refuse to provide any information—in other words, what will happen in the absence of information? This is not the case under our treaties and, under the Extradition Act 2003, a requesting state must provide certain information. That is not being changed by these arrangements.
Amendments 136A and 136B propose a non-exhaustive list of factors for a judge to consider when deciding whether extradition is in the interests of justice. Our strong preference is for an exhaustive list, so long as it is the right list, in order to prevent unnecessary delays in the extradition process arising from individuals raising irrelevant considerations in front of the judge. We believe that the strength of connection to the UK is a relevant factor—I am sure that noble Lords will agree—and we have included it for the judge to consider among others. However, we do not believe that nationality should be identified as a factor in its own right. The UK has historically not had a bar on extraditing its own nationals, which is reflected in all current extradition treaties. There is no intention to introduce such a bar.
Amendment 136C seeks to strike out the provisions in Schedule 19 transferring responsibility for determining human rights representations from the Home Secretary to the courts. The determination of human rights issues is properly a matter for the courts. The courts already consider such issues during the extradition process. This change, which was recommended by Sir Scott Baker in his review, will ensure that human rights issues arising late in the process are properly considered by the courts while also ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising, at the last minute, specious human rights points with the Home Secretary that can then be subject to judicial review.
I shall answer some specific questions raised by the noble Lord, Lord Rosser. He asked what the purpose was of the prosecutor’s certificate. The purpose of the forum bar is to ensure that prosecutors give due consideration to whether a prosecution should take place in the UK. That does not always happen at the moment. Our proposals ensure that a decision on forum is either taken in open court or, in a case where a certificate is issued, in the High Court following any judicial review.
The noble Lord also asked for a definition of clearly unfounded human rights claims. The “clearly unfounded” test is well established as it is already set out in Section 94 of the Nationality, Immigration and Asylum Act 2002. An established body of case law now exists around the term, and I shall now evidence some of it: appeals that frivolously cite Article 2 or 3, or that simply repeat arguments previously considered and dismissed on appeal where there has been no significant change of circumstances.
Both the noble Lord, Lord Rosser, and the noble and learned Lord, Lord Lloyd, asked about treaty breach. I assure noble Lords that the legal advice that I have received is that our forum bar proposals are consistent with our treaty obligations and, for that matter, with the European arrest warrant framework decision.
Lord Lloyd of Berwick
I hope that the Minister will forgive me but this is an important matter. I know that it would be exceptional but would he make that advice available to the House by putting it in the Library?
Lord Taylor of Holbeach
I do not think that it is the practice of Ministers to make legal advice available.
Lord Lloyd of Berwick
It is not practice, but in this instance perhaps the Minister could do so.
Lord Taylor of Holbeach
I am afraid that I have to follow practice in this respect because I believe that advice given by law officers to the Government is always considered to be confidential. However, I have reported the substance of that advice to the House in this debate, and I hope that the noble and learned Lord will accept it.
I turn to the issue that the noble and learned Lord raised right at the beginning of our debate, before we even started considering Commons amendments. I understand his concerns about this matter but, as I made clear in my Statement to the House on 16 October last year in response to the review by Sir Scott Baker of UK extradition procedures, the Government wished to legislate as quickly as possible to introduce provisions on forum. We made that clear at the time.
The Government have worked hard, taking into account the views of prosecutors, to develop an approach which will be acceptable to Parliament and the public. The Official Opposition gave a relative welcome to these proposals when they were tabled in the other place, which I think shows broad acceptance that we have got these proposals right. If we were to remove these proposals from the Bill now, it would be a year or more before those facing extradition would see the benefit of this new and important safeguard. In light of these comments and the response I have given to this debate, I respectfully ask the noble Lord to withdraw his amendment and all noble Lords to support Commons Amendments 24, 25, 49 and 136.
Lord Rosser
My Lords, a number of questions and points on the impact of the forum were asked by the noble and learned Lord, Lord Lloyd of Berwick, in his powerful speech, by my noble friend Lord Dubs in his significant contribution and by me. I am not sure that they have all been fully answered. The case has been made that the proposed change in extradition arrangements will not speed up the process but will work the other way. I do not think that point has been fully addressed either.
This major change in our extradition arrangements is being taken through without full and proper consideration and without Parliament having the opportunity to test and challenge the case for the Government’s proposals or to reflect on the Government’s responses. Parliament is, frankly, being effectively bypassed on this important issue by the way that the Government have dealt with it and the lack of time they have given in tabling their amendments. We have not had the opportunity of considering the amendments in depth. I am afraid that is the reality; I do not honestly think the Minister can suggest otherwise.
I do not think all my questions on the deportation amendments have been answered either. I hope that, at least, the Minister will respond in writing to the unanswered questions and points raised on extradition and deportation in this brief debate. I ask him seriously to consider doing that because he has not responded to all the questions and points that have been raised, albeit that he has, I accept, responded to some of them. We note the Government’s position on our amendment. They have indicated that there will be scrutiny of how the arrangements work, albeit that they are not prepared to agree to an amendment to the Bill. However, I do not intend to pursue that matter any further.
Lord Taylor of Holbeach
Before the noble Lord sits down, he will know that it is always my wish to make sure that the House is informed on matters that may have been raised in debate. I undertake to write to him on these matters and will copy in other noble Lords who spoke in this debate.
Just to clarify the point I made about legal advice, because I do not want to get this wrong, I was correct in what I said. It is not the practice to publish legal advice, nor to confirm or deny that law officers’ advice has been sought in any case. These are matters of legal professional privilege and, as a non-lawyer, I defer to that privilege.
Lord Lloyd of Berwick
My Lords, the House will be glad to hear that I do not wish to add anything to what I have already said. I hope that in some further reply, written or otherwise, the Minister will at least answer some of my questions on the Scott Baker report, which were of some importance. Having said that, I shall not press the amendment.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 25 to 37.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 38.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 39 to 50.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 51.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 52 to 130.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 131.
“EXCLUSIONS FROM DEFINITION OF “RELEVANT PUBLISHER”
Broadcasters
1 The British Broadcasting Corporation.
2 Sianel Pedwar Cymru.
3 The holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence.
Special interest titles
4 A person who publishes a title that—
(a) relates to a particular pastime, hobby, trade, business, industry or profession, and
(b) only contains news-related material on an incidental basis that is relevant to the main content of the title.
Scientific or academic journals
5 A person who publishes a scientific or academic journal that only contains news-related material on an incidental basis that is relevant to the scientific or academic content.
Public bodies and charities
6 (1) A public body or charity that publishes news-related material in connection with the carrying out of its functions.
(2) “Public body” means a person or body whose functions are of a public nature.
Company news publications etc
7 A person who publishes a newsletter, circular or other document which—
(a) relates to a business carried on by the person, and
(b) only contains news-related material on an incidental basis that is relevant to the person’s business.
Book publishers
8 (1) A person who is the publisher of a book.
(2) “Book” does not include any title published on a periodic basis with substantially different content.”
Lord Taylor of Holbeach
“Small-scale blogs
7A A person who publishes a small-scale blog.”
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 132.
Lord McNally
That this House do agree with the Commons in their Amendment 133.
Lord McNally
The Lord Speaker will be pleased to know that it gets a lot clearer from now on.
I beg to move that this House do now agree with the Commons in their Amendment 133. This amendment removes Part 7 of Schedule 15, which would have required contracts between the Secretary of State and probation trusts to place an obligation on trusts to make appropriate provision for the delivery of services for female offenders. This included making provision for women to participate in unpaid work and rehabilitative programmes with their particular needs in mind. As noble Lords will recall, Part 7 of Schedule 15 was inserted into the Bill at Third Reading when the House agreed an amendment in the name of the noble and learned Lord, Lord Woolf. With his customary courtesy, the noble and learned Lord, Lord Woolf, has explained to me that family and religious observations have meant that he cannot be with us tonight, which I fully understand, although I see some familiar faces around the Chamber of noble Lords who are involved in this matter.
I know that the Commons’ decision to remove Part 7 of Schedule 15 will have been a disappointment to many in this House. As the high quality and impassioned contributions to the earlier debates on this issue showed, addressing the needs of female offenders is a key priority for many here. I therefore reaffirm that the Government are committed to addressing the factors associated with women’s offending, and to taking a different approach where there is a need to differentiate provision for female offenders. We recognise that we will rehabilitate female offenders and enable them to lead positive and productive lives only if we a take a different approach where it is required.
Lord Ramsbotham
My Lords, in her foreword to the Strategic Objectives for Female Offenders published last Friday, Helen Grant, the Ministry of Justice Minister responsible for women, wrote:
“The issue of women in prisons is a deeply emotive one, in which there is very genuine interest from Parliamentary colleagues”.
I am sure that the noble Lord, as a member of the Government who purport to be as genuinely interested in the issue of women’s justice as Helen Grant professes, will understand why I say that a number of genuinely interested colleagues are deeply upset that this amendment is coming up at such a late hour, because understandably they and others have had to leave the House. Tragically, this is an all-too-familiar story where women’s justice is concerned, about which we should all feel ashamed.
If the Committee in the other place was genuinely interested, I cannot imagine how it accepted, without debate, the Minister’s assertion that the amendment successfully introduced at Third Reading in this House by my noble and learned friend Lord Woolf—sadly, he cannot be here tonight, as noble Lords have heard—was unnecessary. The amendment sought to obtain much needed statutory protection of measures to ensure that the distinct needs of women offenders were prioritised and met. It was said to be unnecessary because it specifically mentioned probation trusts and, because probation was under review, it did not make sense to legislate on probation provision, and because the Government were already committed to working on women’s provision, the legislation was not needed. The genuinely interested Committee threw out my noble and learned friend’s amendment, denying other genuinely interested colleagues any opportunity of considering it at Report. What a message such treatment sends to those who are encouraged to believe that the Government are genuinely interested in the position of women in the criminal justice system.
If this was the first occasion on which similar dismissal had been the fate of proposals concerning the specific needs of women offenders, it could perhaps be more easily understood. The point about probation is a semantic quibble because, whatever the outcome of the review, someone will be responsible for the provision of services to female offenders. But the point about legislation is important, because the amendment is an attempt to ensure that consistent and continuous action is taken by successive Ministers, rather than a continuation of past practice, which I can best characterise as being seven times bitten and, understandably, eight times shy.
The strategic direction announced by the Minister includes sections on enhanced provision in the community and transforming rehabilitation, with at its heart an advisory board. In principle, I welcome strategic direction, because a strategy is a single aim uniting the contributions of all those concerned. But as this one contains nothing new and is noticeably short on detail, I can best describe it as pretty thin wine. While not against advisory boards per se, I am not happy that the Minister should put so much hope in this one, because boards do not provide leadership or take positive action, and positive action, not yet more advice, is what is so badly needed.
The Minister said that the board had been convened,
“to develop polices to tackle female re-offending, to help women into gainful employment and safe environments, and off the ‘conveyor belt to crime’”.
Of course, nobody could be against such aims, but I am deeply cynical about how they will be implemented and overseen, in view of bitter experiences in the past. Over the past 16 years, I have heard much the same from a succession of Home and Justice Secretaries and Prison and Women’s Ministers and I have seen a plethora of policy, advisory and women’s issues boards set up to develop policies and to help women off the “conveyor belt to crime”, after recommendations made in two thematic reports of mine when I was Chief Inspector of Prisons, a report by the Prison Reform Trust, three reports by the Fawcett Society and finally the report by the noble Baroness, Lady Corston, only for them to disappear without trace. I note that, like its predecessors, this board is expected to,
“take a creative, innovative look at the scope … for improved sentencing options”,
as well as,
“designing the system to ensure that women’s needs and priorities are recognised in the provision of services in the community and through-the-gate of prison”,
and working with partners within and outside the criminal justice system,
“to ensure that the needs and profile of female offenders are recognised and understood”,
while also promoting “community sentencing options”.
Here I make no apologies for repeating what I have said time and again in this House: history, and particularly recent history, proves that nothing will happen until and unless some named person is made responsible and accountable to a Minister for making it happen. As nobody has been appointed in the case of women, virtually nothing has happened.
Baroness Corston
My Lords, I support Amendment 133A in the name of the noble Lord, Lord Ramsbotham. He suggested that my report had sunk without trace. Perhaps I may reassure him that I have not. Having waited over a year from the day when the noble Lord, Lord McNally, promised this House that we would have a strategy for women offenders which would be published “quite shortly”, found the statement released last week was acutely depressing. It was thin and took us back to the days of the women’s offending reduction programme. It is extraordinary that this can happen, particularly as I know that the noble Lord, Lord McNally, and his parliamentary colleague Helen Grant MP have been visiting women’s centres up and down the country and must have got the same message.
Why has nobody recognised the plight of women at risk of offending? It was reported in the papers that the women’s prison population had gone down by 400 since the previous Government started implementing my report. Given that the women’s prison population is, at any one time, just under 5,000, that is a proportionate reduction that the Minister might be quite proud of if it happened in the male estate. Why has it happened? It has happened because of the focus on women at risk. Magistrates’ courts up and down the country now do this work but there is no reference to it whatever. Will the Government please stop talking about payment by results? I have been in Parliament for 21 years and I have never known a Government who wanted payment without results.
Women’s centres, which work with women offenders who have been sent there by the court and women at risk, can have reoffending rates as low as 10%. There is no prison system in the world that can boast reoffending rates of 10% and yet these centres are now writing to me to say that their funding is being cut and they are finding it hard to cope. The £3.78 million, to which the noble Lord, Lord McNally, referred, is all well and good but probation trusts are, as I understand it from correspondence I have had with Helen Grant, being given the job of ensuring that that funding is spread. A smaller pot of money is being spread further so centres like Anawim in Birmingham—I challenge anyone visiting that centre not to be profoundly impressed with the work it does with very troubled women—are finding it difficult to cope. A lot of the women about whom constituents visit Members of Parliament in their advice surgeries are ones whose chaotic lifestyles lead to prison. Work done with them saves local authorities a lot of money.
I want to contrast what is happening with this advisory board with what happened before. We had a Minister, Maria Eagle, who regularly made Written Ministerial Statements on progress. That went alongside a very detailed strategy that was a thick document, not the two pages—it may have been three but it certainly was not more—that we had last week. This advisory board will work only if it has absolute overall strategic direction and a multidisciplinary team of civil servants working alongside it. I do not see that happening.
When I hear the Government say, “We are implementing Corston”, which I do not say out of arrogance but I gather that within the Ministry of Justice I am a noun and a verb, I feel my blood boil because it is not true. This Government do not understand the situation with regard to women generally, what gender-specific services are and what kind of priority should be given. If they did, it would not have taken one year and 10 days to publish what is a thin, mean document.
A huge opportunity has been missed because you cannot reinvent a broken wheel. Centres such as Anawim write to me saying, “You know what work we do and we are now finding that we are turning away women who lead chaotic lifestyles and are at risk of losing their children”. This is alongside a Bill under which we are speeding up the adoption process. What happens is that instead of helping these women who are at risk of offending to turn their lives around and keep their children, we do nothing for them and let someone else adopt their children.
Lord Hurd of Westwell
My Lords, I must add a word of praise for the two speeches that we have just listened to and a word of exhortation to the Minister to pursue more effectively the lines that he set out. We can welcome the steps that he outlined, so far as we understand them on first reading. Whether those steps will be taken or in some way accelerated by the fact that we are having this debate and passed an amendment at an earlier stage, I do not know. However, in attempting to make his case, I thought that the Minister’s heart was not in it. He did not really explain why my noble and learned friend’s amendment would be unhelpful. He took some pride in saying that life has moved on—meaning that the Government have moved a step or two—and that the amendment was therefore out of date. However, the Minister has not been too chary in the early part of our proceedings today in moving government amendments that updated the Bill. It would not be beyond the wit of his department to commission an amendment that would have filled any gap and brought us up to date on the Government’s latest actions, which, I understand, came to a head last Friday.
This is a black hole in our criminal justice system. In my time as Home Secretary, I visited a good many prisons, and I have visited several in the past year or so through my involvement with the Prison Reform Trust. Nothing is more desponding, gloomy or soul-destroying than a visit to a women’s prison. I do not know quite why, and I have not sorted out the logic of it in my mind, but there is something particularly disagreeable and unnatural—awful, really—about a woman in prison. When you consider the kind of offences in which women are characteristically involved, particularly those concerned with drugs, you are filled with a feeling of pity and anger that this defect in our criminal justice system should yawn so widely and take so long to deal with.
The noble Baroness, Lady Corston, is of course to be congratulated on her report, which has helped to move things on, as has the tireless work of the noble Lord, Lord Ramsbotham. They have illustrated clearly in their powerful speeches the defect. What is lacking is accountability and a person or persons whose responsibility it is to put this wrong right. Short of that, I fear that we are just being subjected to an amiable, and certainly sincere, smokescreen. They have proved beyond doubt that that is not sufficient. This has drifted on year after year, as the noble Lord, Lord Ramsbotham, said, and now we are offered not a statute, or a promise of legislation, but an advisory board. There is an advisory board sitting in this Chamber, but unfortunately its advice is not being taken.
I do not know whether the noble Lord, Lord Ramsbotham, intends to press his amendment to a vote. I am sure that the Minister does not need to be told this, but I would ask him to take away and report to his Secretary of State and to all concerned in the Ministry of Justice the strong feeling in this House that there is a black hole in our arrangements and that we look to this Government to put it right.
Baroness Howe of Idlicote
My Lords, I rise to support the amendment moved by my noble friend Lord Ramsbotham. I believe that what happened in the Commons, the way in which this whole area was tossed aside and not debated at all, was disgraceful. I believe that the very least that the Government can do is to answer the three questions that my noble friend has put to the Minister. I would lay the greatest emphasis on having an annual report on progress that is made in the whole of this area.
I am especially concerned about the differences in the treatment of men and women for two reasons. First, there is a distinct difference in the backgrounds of women who are in prison for very short sentences. As we have heard, such sentences account for the vast majority of women—and indeed men—in prison. As one example, 5% of the prison population are women, and yet 31% of self-harmers in prison are women. The Government should receive full marks for starting to outline, at last, these plans, as we have begun to get a picture of what we hope will happen in the future. I am very supportive of these plans as there are so many women in prison who should not be there, certainly not to serve short sentences as is currently the case.
Secondly, and above all, these women should not be in prison because of the effect that it is having on their families. How many of those families will find their own way into prison as a result of having had their family broken up, having been taken into care or placed with relatives and, above all, having lost that very particular relationship between mother and child? I believe that that is the worst aspect of all. How many facts are we given about the number of families who are repeatedly in and out of prison in a continual spiral of offending?
Good luck to the Government with their plans, but please let us have a report on what is happening, and let us have real progress. Quite apart from the women concerned, I believe that we will find that this kind of treatment could be as applicable to men in our prison service. We need a whole overview of what goes on.
Baroness Hamwee
My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.
Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.
Lord Rosser
My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.
The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,
“in providing strong leadership on delivery of our strategic priorities”.
However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?
It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,
“relatively small number of female offenders presents particular challenges”.
Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.
Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.
The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,
“women-only groups, where run, were often successful”.
It found that,
“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.
At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.
If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.
Lord McNally
My Lords, I thank all noble Lords for their various contributions to the debate. It is very interesting that the noble Lord, Lord Rosser, said that there had been 10 previous reports and that the noble Baroness, Lady Howe, spoke about the various bits of information. It is not information that we need, nor reports or statutory commitments in a Bill. It would be very easy to accept it and go on just as before. Part of my problem with the interventions of the noble Lord, Lord Ramsbotham, is that he always seems to think that a new structure or reporting method would solve these things. As with the noble Lord, Lord Hurd, every women’s prison I have visited has depressed me profoundly; and yes, if you ask my opinion, at least half the women we have in our prisons should not be there. However, it is no use the other side making pious observations now they are in opposition. The fact is that they were in office for four years after the report of the noble Baroness, Lady Corston.
Baroness Corston
My Lords, the noble Lord, Lord McNally, must know that during our time in government, 39 women’s centres were set up—£15 million was spent setting them up—to divert women from custody. I take great offence at his suggestion that nothing happened.
Lord McNally
I am not suggesting that nothing happened, but I am suggesting that the problems that we are facing now are very real. We have made progress on this. We have ring-fenced funds in a time of very real problems for government funding. I am surprised that the noble Lord, Lord Ramsbotham, did not make even a passing reference to the fact that we are for the first time dealing with prisoners serving sentences of less than 12 months. I know that the previous Government tried that and then abandoned it. However, every time a Government try to make progress with an advisory committee it should not just be dismissed. I have been working for six months with Helen Grant and she is someone who is going to take responsibility. The Secretary of State has made her the Minister for Women’s Prisons, separating it out from other prisons so there is a line of responsibility.
Lord Ramsbotham
My Lords, I thank the Minister for his reply. Over the years I have come to recognise that in the Minister we have a fully paid-up supporter of the probation service as well as a fully paid-up supporter of making improvements to the women’s justice system. Therefore, I am conscious that we are talking to somebody whose heart is certainly in making the improvements that we all know to be necessary. I also thank all those who have contributed to this debate. In various ways they have emphasised just how genuinely interested this House is in making progress and how disappointed it is that over the past 16-plus years we appear to have been there and then not there, and then there again and not there again, and so on. This has got to stop.
I do not discount what the Minister says about the commitment of Helen Grant and the leadership she is going to apply. That is not my point. I am not making suggestions for new structures. All I am saying is that in every other organisation things work where you have a determined Minister assisted by someone who is responsible and accountable to that Minister for the delivery. That is what is missing and it has been missing over and over again. It is not new and it is not something that I am plucking out of the sky, because it happens everywhere except here. I just pray that one day this penny will drop because I fear that Helen Grant, well intentioned though she is, will find that the advisory board will not be the mechanism and she will not be able to oversee the consistent delivery all over the United Kingdom. It is consistency that we want.
I deliberately did not mention all sorts of things that are in Transforming Rehabilitation because this is a much more general issue, but I am extremely encouraged by the Minister’s response to the suggestion of an annual report. That will be an excellent opportunity for this House to demonstrate not just its commitment to this but its very genuine interest and wish to apply the collective experience and knowledge in this House in the best interests of both the Government who are responsible at the time and the women whom we hope are going to benefit from what can be done. I am conscious that the Government have laid down things that they intend to do, which I hope that we can monitor, and on the hopeful note from the Minister, I withdraw my amendment.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 134 and 135.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 136.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 137 to 139.
Jobseekers (Back to Work Schemes) Bill
(11 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
23:49 - Division on Amendment 2 - Ayes: 43 / Noes: 159 - Amendment 2 disagreed.
12:54 - Division on Amendment 5A - Ayes: 35 / Noes: 137 - Amendment 5A disagreed.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I will speak to Amendments 1 and 3 in this group. These are probing amendments, but I want to start by saying how much we deprecate the fact that we are having to debate this significant and retrospective piece of legislation at this hour and to complete all the stages before we draw stumps this evening.
It might be helpful if I set out from the start how we are approaching these matters. We accept from Second Reading that, whatever our fundamental concerns, the Bill will retrospectively make regulations lawful that the court has thus far considered to be unlawful and that notices that were inadequate are now to be treated as satisfactory. What we are seeking to probe by these amendments is whether individuals adversely affected by this will be in no worse a position as a result of this Bill than they would have been had the regulations and notices been lawful in the first place. This, in particular, requires focus on the reconsideration and appeal situations so that we are clear how they are to operate.
Where individuals have been sanctioned and are not part of the stockpile, they may have appealed already. Their appeal may have been stayed because of the High Court decision, may have been successful or may have been unsuccessful. Where such individuals have been successful in their appeal, it is presumed that the position would stand. Can the Minister please confirm this? Where appeals have been stayed, what is the position? If the appeal was based on the unlawfulness of the regulations or the notices—a defence that is no longer available—are appellants now able to bring forward new reasons that they thought unnecessary to explore before? This raises the question of those who have not hitherto appealed a sanction. It is understood that, under the rules, the time limit for an appeal is generally one month from the date of the recent decision, but this can be extended if the decision-maker does not object or if the First-tier Tribunal extends the time limit. Has any specific guidance been given to decision-makers on this matter or to those who have been sanctioned?
For those cases that have been stockpiled and will now proceed to be sanctioned, the key issue is how, in retrospect, the individual can now be assured of availing themselves of good cause provisions, the opportunities to mitigate and the hardship provisions. My noble friends Lady Sherlock and Lady Hollis will develop these themes in subsequent amendments, but it would be helpful if the Minister could set out for us what consideration has been given to this issue to ensure that there is fairness.
In so far as the stockpile of cases is concerned—those for which no decision to sanction has yet been made—it is understood that no sanctions will be pursued when someone is now in work. Can the Minister please expand on this? Does the individual need to be in full-time paid work for the purposes of being ineligible for JSA or is there another test? What if the individual has been in work since the failure to comply but has fallen out of work again? As was raised at Second Reading, there will be those whose employment is not very secure or whose hours, particularly with the proliferation of zero-hours contracts, will fluctuate. The point in time when a decision on sanctions for them will be made could determine whether or not they end up being sanctioned. How will this point be dealt with?
On a related point, again touched on at Second Reading, will the Minister say something about national insurance credits? Have the sanctions that have been imposed led to any national insurance credit restrictions? If so, will the Minister explain the technical linkage with JSA sanctions? Would those restrictions flow automatically or in some separate, if parallel, process?
These are just some of the questions that present themselves and we seek assurance from the Minister that these matters have been fully analysed and that no further detriment arises to claimants. In the time available, we have not explored all the interactions between requests for revision, supersession and appeals, nor all the nuances of appeals. As a general point, though, as well as dealing with the specifics of the above, it would be helpful if the Minister could confirm that it is the Government’s intent that claimants should be in no worse a position in respect of these matters than if the regulations and notices had been valid in the first instance. I beg to move.
Baroness Hollis of Heigham
My Lords, I support my noble friend in his amendments. Timely and efficient appeals systems are always necessary and in these circumstances they are essential. The social security appeals system is under strain and that strain will be intensified as a result of what claimants will now be experiencing. What are those difficulties? The number of social security cases going to tribunals in general were 418,000 in 2010-11, 70% higher than just two years previously, while, as far as I can tell, this year’s statistics are up a further 14% or so, and appeals against sanctions as such are only a modest proportion of these.
Social security appeals represent half of all tribunal cases. The tribunals are receiving social security cases faster than they can clear them, so that although half of all cases take 14 weeks or less, one-quarter take between three and six months to be heard and 10% take between six months and a year, so only half of those cases meet the key performance indicator, the KPI, of 16 weeks laid down by the department. During that time—that extra long waiting period already experienced—claimants’ circumstances change, they lose oral evidence based on memory and above all they are left without any benefit, some of them for months, and suffer real hardship. Timeliness and efficiency, therefore, are key.
We need the Government to tell us what problems they will meet in unleashing the stockpile of sanctions cases into a system already under strain, with the inevitable appeals that will follow, and how they propose to resolve them. How many cases are currently outstanding? Do the Government have the capacity to increase sitting days beyond the 80,000 or so required at the moment to deal with the full backlog? How long does the Minister expect claimants to have to wait? How many, and what percentage, will be over the three-month KPI target?
The second issue is not about numbers but about verdicts and outcomes. Of those cases going to appeal, some 40% overall are won by the claimant. Former presidents’ reports on this are, frankly, an excoriating indictment of the DWP decision-making process and their findings over the years are confirmed by the recent November 2012 report analysing appeals. The main reason why appellants win is that they produce additional oral evidence not previously taken into account by DWP. However, the reports and the research have noted that tribunal judges were continually frustrated by the behaviour of decision-makers within DWP. In the latest statistics, about one-third of local decisions on sanctions were reconsidered by the decision-maker and, of those, half were in favour of the claimant. Of those not accepted by the decision-maker, just over one-third are going on to tribunal.
Why are those tribunal judges so continuously frustrated by decision-makers’ efforts within DWP? First, we are told by tribunal judges that decision-makers choose not to accept additional, usually oral, evidence without having any good reason for refusing it. That is because they have often failed properly to engage with the claimant. Something like 65% of all appeals come into this category. Secondly, there is little evidence that decision-makers reconsider cases at all. They were, the report said, reluctant to do so and did not bother to explore any discrepancies in evidence or to follow up requests for further information.
Thirdly, decision-makers did not weigh medical evidence at all appropriately, especially for mental health claimants, nor did they seek further information when dealing with a progressive condition. That applied to something like 15% of the appeals that went to tribunal. Most damning of all, they often made different decisions from the tribunal decision-makers on the basis of the same evidence presented to the tribunal, which meant that decision-makers got it wrong, according to law, in 30% of the cases lost by DWP. In other words, had the decision-makers within DWP done their job properly, these reports suggest that DWP would either not have had the appeal because the decision-maker would have rightly reversed the original decision, or at appeal the DWP would have won most of the appeals that it lost because the tribunals would have accepted that all the appropriate evidence had been properly assessed. That is a pretty searing judgment of the current system.
What are the implications for those caught by this Bill? The problem is clearly threefold. First, local offices are making flawed decisions, including on sanctions, and that is before we get on to the disgraceful area of targets. Secondly, decision-makers are not doing a proper job reviewing those local office decisions and are endorsing flawed decisions that they should have corrected. Thirdly, the tribunal service cannot keep up with the increased number of appeals coming its way. Of course, this will get far worse now that legal advice and support are withdrawn and, as a result and as we shall argue later, tribunal cases will take twice as long to process.
Will the Minister reduce the pressure on tribunals and better support claimants by requiring decision-makers to do a more conscientious review of the original decisions? It is clear that at the moment too many of them are not doing a professional job—bluntly, they need to brought face to face with the evidence. Are decision-makers informed of the tribunal’s findings and is their performance reviewed when their decisions are overturned by the tribunal? Could that perhaps be a KPI? What guidance and additional training will be made available to decision-makers to improve their performance? If the Minister is going to review any targets, could we please have a new performance indicator, a really useful target that reduces the number of successful appeals by claimants from the current 40% or so down to, say, 20% or even 15%? That would really transform decision-makers’ behaviour.
Given the trivial basis for sanctioning claimants uncovered by the Guardian, many of whom we can expect to appeal, thus increasing the backlog before eventually being overturned at appeal, as many of them will be, will the Minister ensure that cases going to appeal are pre-reviewed and re-reviewed by decision-makers to improve their own poor-quality decision-making? Will he also ensure that the number of tribunal sitting days is appropriately increased to meet the target of within 16 weeks, so that they are timely, and that—I am trespassing into a following amendment—sufficient advice is given to claimants, as my noble friend Lord Bach will argue, to reduce the number of unsuccessful appeals, given the delays? I hope that the Minister will be able to answer these questions and those of my noble friend tonight and in the process perhaps allay our very real concern for these claimants who are going to be caught up in an appeal system that is increasingly flawed and failing.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, the purpose of these amendments is to ensure that the reconsiderations and appeals arising from decisions relating to sanctions that are dealt with by the Bill are considered in a timely and efficient manner, and that appeals take into consideration the delay between the failure to participate and the issuing of the sanction.
I am happy to give a commitment to the House that DWP will process the stockpiled cases, and any reconsiderations and appeals that follow, in a timely manner. It is not in the department’s interest to procrastinate on these cases any longer than necessary. I also note that the department is already required by Article 6 of the ECHR to deal with social security disputes in a reasonable time, while the First-tier and Upper Tribunals are also bound to deal with appeals in a fair and efficient manner. When the Bill receives Royal Assent, I assure noble Lords that processing the stockpiled cases, including any appeals and reconsiderations, will be given a high priority. Purely from a business perspective, DWP will want to unwind these cases and any follow-up activity as quickly as possible so that it can utilise its resource in dealing with more current claims.
The associated amendment seeks to ensure that when the First-tier Tribunals and the Upper Tribunals are determining an appeal against a sanction decision issued in reliance on the provisions in the Bill, they have regard to the circumstances around the Reilly/Wilson case, particularly any delay resulting from the case. I understand, given the noble Lord’s statement at Second Reading, that he is concerned that, because there may have been longer than usual between the failure to participate and the issuing of a sanction, the claimant will be unable either to remember or to provide evidence of any good cause they had for the failure.
I will spend a moment describing the process that happens between a claimant failing to participate and the issuing of a sanction. When a claimant gets referred to a DWP decision-maker for a sanction decision, a letter is sent asking them to provide evidence of good cause. The letter says:
“Will you please contact me before”—
and then a date is inserted—
“to explain why you did not undertake this activity. You should note that unless you provide a good reason for not undertaking this activity, your benefit may be affected”.
So the stockpiled cases would, at the time of the failure, already have been asked once to provide good cause. The fact that we did not deal with these cases immediately will not have prevented these claimants from providing evidence of good cause at the time of the failure. The decision-makers will have all this evidence on the stockpiled cases already, so the risk that they have been unfairly treated is significantly minimised.
I know that not all claimants will have provided their evidence of good cause the first time they were asked for it, although this is of course entirely their fault. However, I reassure noble Lords that in these cases, where a claimant is attempting to argue that they had a good reason for a failure that occurred many months ago, decision-makers and First-tier Tribunals will make an objective decision based on the evidence before them. They would of course take into consideration any claimant’s argument that they had good cause, but that they cannot provide evidence because of the length of time since the failure. It would be up to those hearing the appeals to judge on a case-by-case basis whether they thought this argument was strong enough.
I also note that this amendment only seeks to ensure that the appeal, and neither the decision to issue the sanction nor the reconsideration, takes into account any time delay caused by the Reilly/Wilson case. I assume that this was not the intention of the noble Lord, Lord McKenzie. There is this oversight, and claimants in the stockpile would at the time have been asked for evidence of good cause. The tribunal is also already bound to have regard to all relevant matters.
Picking up the issues raised by the noble Lord and the noble Baroness on national insurance credits, prior to the changes to the jobseeker’s allowance sanctions regime from 22 October last year, national insurance credits were paid during the period of the sanction. National insurance credits are not paid when the benefit is sanctioned on or after 22 October. The Bill does not change these arrangements. The payment or not of national insurance credits with respect to stockpiled sanction decisions will therefore depend—
Lord Howarth of Newport
I wonder whether the Minister would reconsider the language habitually used by DWP. When he talks of a stockpile he is referring to human beings in very anxious circumstances who are waiting for their cases to be considered. Does not this language rather dehumanise them?
Lord Freud
The noble Lord makes the same point as JRR Tolkien, who did not think that “growth” was the right way to refer to hobbits at Bilbo Baggins’s birthday party. If the noble Lord can think of a better word than stockpile, I will happily use it. I cannot think of one off the top of my head. If the noble Lord finds that offensive—
Lord Freud
Yes, but there are six billion people around. I am trying to refer to a particular group. I hope that by the time we get to the next amendment I will have found a better word, so bear with me for a little while if I cannot work that one out on my feet.
On the point about people going into work: if a claimant has been off jobseeker’s allowance for longer than the length of their sanction then they will be deemed to have served their sanction, and therefore will face no penalty. I cannot go through the absolute detail of the proportionate amount but it is likely that we will do this proportionately for those who have been in work, so there will be a record of that.
On the points made by the noble Baroness, Lady Hollis, a lot of the issues surrounding what the tribunals are doing are in ESA cases, while we are dealing here with JSA cases. We are talking about rather small numbers; I will go into more detail on them. This is a very small group of people, and the concerns about how quickly they may go through the tribunals, and the pressure they put on those tribunals, are to that extent much more manageable than if theirs were the more complicated ESA cases. Likewise, much of the concern around those cases has been around the medical area and that, of course, will not arise in this particular instance.
The decision-makers receive in-depth training, including on the importance of impartiality, what constitutes evidence, and the balance of probabilities. Clearly a large number of their decisions—three-quarters—are upheld. By putting decision-makers in between, for instance, the WCA and the tribunal, we were trying to weed out those areas where the DWP considered that the tribunal would find against, and thereby reduce the volume. That is what has been happening, and clearly we watch that very carefully. Having dealt, I hope, with all the issues raised, I beg the noble Lord not to press his amendment.
Lord McKenzie of Luton
My Lords, I indicated at the start that these are probing amendments. That highlights part of the problem of having this truncated process: that we do not have the chance to take away and read the Minister’s comments. We have to try to absorb both what is said and what is not covered this evening.
In relation to deferred decisions, I will not use the term to which my colleagues objected. The Minister said that these would be dealt with in a timely manner. However, the thrust of the presentation made by my noble friend Lady Hollis was to ask whether there was the capacity to deal with this. Decision-makers are struggling under current arrangements, and adding this extra burden will make life more difficult.
On national insurance credits, I was trying to probe the point that when they are withheld because of sanctions, post October, in circumstances where the regulations that underpin the sanctions were originally found to be unlawful, the Bill switches lawfulness back on in respect of the sanctions component. Does that automatically run where national insurance credits have been withheld? What is the connection between the two? Does it automatically flow from whether a sanction has been levied, or does it require another process that authorises the withholding of the national insurance credit? If the original decision was based on an unlawful position in respect of the regulations, is the restoration of the lawfulness of those provisions under the Bill enough to authorise the withholding of national insurance credits? That was the point I was probing, perhaps not in sufficient detail.
On those cases that have been deferred where no decision has been made, I think that what the Minister said was a change from what we previously understood the position to be. I thought that the point had been made very clearly before that if somebody was in work, there would be no sanction. It seems that some nuances to that have been introduced by the Minister’s reply. Now it will depend on how long they have been in work in comparison to the length of the sanction that has been levied. That seems to be a new formulation, which we have not heard articulated before.
I did not hear from the Minister an assurance that we were seeking. Leaving aside the issue of making the regulations and notices retrospectively lawful, is it the Government’s intention that individuals should otherwise be in a worse position than they would have been had the regulations and notices been lawful ab initio? How does that interact with the appeals process? We have not unpicked all those issues this evening.
Having said all that, I do not think that we can get any further. I hope that the Minister will reflect on this discussion. If we could get something further in writing before we rise later this week, it might give us some reassurance. For the moment, I beg leave to withdraw the amendment.
“( ) The Secretary of State will, within a month of this Act coming into force, lay a report before Parliament outlining whether in his view claimants affected by the introduction of this Act have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction imposed under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations after the coming into force of this Act.”
Lord Bach
My Lords, Amendment 2 is in my name and those of my noble friends Lady Sherlock, Lady Hollis of Heigham and Lord McKenzie. My first point is that this is about as mild an amendment as could possibly be imagined. All that I am asking is that the Secretary of State should lay a report before Parliament within one month of the Act coming into force. The report would outline the Secretary of State’s view on whether claimants affected by the introduction of the Act would, in the crucial words,
“have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction … under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations”,
both of which were declared unlawful. It is a limited request, and one to which I hope the Government will listen sympathetically in the course of this short debate.
It goes without saying that every claimant has the right of appeal. It would be pretty shocking if they did not. However, what use is a right that cannot be enforced? That is where the problem arises. At present any claimant who has sanctions imposed can obtain legal advice as to an appeal, whether the appeal is in the form of a review to the department or to the First-tier Tribunal. If a claimant is eligible, they are, as we speak, entitled to legal aid. Therefore, in reality they can get the advice perhaps from a solicitor or, more probably, from a not-for-profit organisation such as a law centre, the CAB or an advice centre.
This advice is not expensive—about £150 for this sort of case. It does not make the lawyers rich. It is quality advice. It often tells the claimant that he or she has no chance in any review or appeal. On the other hand, it may tell the claimant that he or she has a proper legal appeal. Early advice of this sort stops people going to the First-tier Tribunal. It does not encourage them to do so. The advice does not extent to representation. What it does is give these citizens some limited access to justice, which a mere right of appeal does not do.
Of course, in a week’s time on 1 April, legal aid will no longer be available to a claimant in this kind of case however poor, disabled or marginalised he or she may be. It has been taken out of scope. The question arises: from where is the client who believes that he or she may have an appeal to get advice? Law centres, CABs and other advice centres rely on legal aid as a major part of their income. How will they survive? Will it all be done pro bono by other lawyers? I would argue it is not possible in the real world for that to happen. There is not the expertise in this field of law or the time for busy lawyers to do pro bono work to cover all these cases. All pro bono lawyers agree with that. There is no satisfactory answer to the question: where will these people go?
Her Majesty’s Government’s more general assertion has been that welfare benefit law, under which these sanctions arise, is simple, not complicated, easy to understand and is not really law at all. One only has to state that point of view to know what rubbish it is. The thousands of pages of legal textbooks, the comments of tribunal judges from top to bottom and the experience of real life gives the lie to a trite and convenient lie. In this amendment, I invite the Government to live in the real world and do their proper duty to ensure adequate legal advice and support.
My remarks so far have concerned all claimants who face sanctions since the introduction of the new regulations on 12 February this year, following the Appeal Court judgment. However, there is a past and pressing problem for those claimants whose cases have been put on one side as a result of a Court of Appeal judgment. The decision to sanction those people will either not be made, or it will have been made under what were ruled to be unlawful regulations, their time for appeal not having run out by 12 February. In both cases, they would have a reasonable expectation of knowing their fate some time ago. Any decision to sanction them would, of course, have been subject to appeal. Of course, claimants are entitled now to get legal advice and, if eligible, entitled to legal aid for that advice. But in a week’s time, while still theoretically they are entitled to legal advice for an appeal, they will not be entitled to legal aid, which means in practice that many fewer than should will be able to get that advice. How can it be just that those people are put into a worse position by a delay that is absolutely no fault of their own but is, frankly, the responsibility on the other side—in this case, the department and the Government behind it? That is according to the Court of Appeal—in other words, as we stand now, the law of the land. It would be wrong for any of them to be deprived of their right to legal aid in those circumstances. Does the Minister agree? If not, why not?
My amendment asks the Secretary of State to take into account the availability of legal aid for claimants in that situation. In my view, the Government can do no less. It is a modest amendment to which the Government could give their blessing. I beg to move.
Baroness Hollis of Heigham
I support the amendment of my noble friend. I have to declare a sort of interest as a former Minister responsible in the DWP for the tribunal services before Leggatt centralised them. As a result, I would visit tribunals and, five minutes into the hearing, I could tell whether the claimant had or had not received legal advice and support or welfare advice and support before entering the appeal. Those who had presented a coherent account with the appropriate accompanying papers and evidence, were prepared for the questions asked of them. It kept the process simple and straightforward, and the cases that I saw took on average about 40 minutes to complete. In each case, the decision, usually up to half the time in favour of the claimant, was the right one.
Then there was the other sort of case that came to tribunal, people who came with their sheaf of papers in a carrier bag, which they shuffled through without any advice, unaware of what it was that the tribunal needed to know and what would count as relevant evidence. I recall one man, Indian or Pakistani, who was there with his wife; his eyes never left the floor, and he sat hunched over as he tried to explain in poor English and a low, faltering voice, why he was appealing against a refusal of DLA—and he could not. The superb chair, who we now call a judge, spent nearly two hours trying compassionately to coax his story and evidence out of him in some sort of order. It took more than twice as long as the previous case, and his appeal was upheld.
What lessons may we draw from the situation in which there is no prior legal help or support for advice? Social security decision-makers, as we argued on the previous amendment, frequently fail to review decisions properly. Unless the claimant is savvy enough to put his case in ways that fit guidance on reconsideration, we end up with an unnecessary tribunal case, and the tribunals handling such cases clear, as a result, two or three cases a day instead of five or six. I plead with the Minister to learn from this. I do not know whether he has sat in on any social security tribunals, but he would quickly see which claimants had had prior advice and which had not. Remove the advice and the need does not go away; it is merely displaced to the very much more expensive and time-consuming stage of the tribunal itself. Instead of advice being given in advance, the whole untangling of that mess has to be done by the tribunal judge in person. That seems to me key. The need does not go away; all you are doing is transferring it to the most expensive and laborious way of addressing it.
Legal advice, which we are told we cannot afford, is not a luxury; in my view, it is essential because social security is complex and most claimants, by definition, are probably poorly educated, not especially articulate, confused about what they are due and need help at the early stages. They are aggrieved. However, as my noble friend Lord Bach said, early advice may discourage people from pursuing unfunded and unfounded cases. Legal advice also helps ensure greater consistency and a common approach across regions. We are getting a lot of research evidence suggesting the unevenness of responses from decision-makers and tribunals trying their best to produce the consistency that local offices are not.
The Minister knows that we are seriously worried about what will happen when existing claimants are brought on to UC, which I very much want to work. I fear that the tribunal system will be completely overwhelmed unless there is legal aid and welfare advice available at the preliminary stage to screen out weak cases and to put into good order appropriate cases for the tribunal; otherwise, I believe that the system will buckle.
We are therefore deeply worried about the situation of claimants under the Bill who will not know what their rights are and whether the proposed sanction is valid. In some cases, they may have been stalled for many months. They do not have fresh evidence to bring to bear and can no longer rely on their memory to give a coherent account of what happened when. Did they have good cause? At the preliminary stage, legal or welfare rights advisers can perhaps help them find out, track hospital or school records, organise paperwork and explain to the claimant what will happen, why he has lost his benefit and whether the case against him is soundly based. If that welfare rights officer or the legal advice is not there to do that, the tribunal judge will have to, as I have seen with my own eyes. Can that individual stop the sanction? Is it possible for him to comply? Jobcentre staff cannot or will not now give that advice, especially given the evidence about targets. Claimants need the supportive, friendly, neutral, professional, cheap advice from outside the system. However, of course all this hinges on whether the department wants people to get the right benefits and the right outcome. Does it?
Lord Howarth of Newport
My Lords, is it not the case that every Government of the United Kingdom since 1948 have been committed to the principles and values articulated in the Universal Declaration of Human Rights? Is it not also the case that Article 7 declares that all are equal before the law and are entitled without any discrimination to equal protection of the law? If the Government deny legal aid in these cases, will they not repudiate that historic and fundamental commitment?
Baroness Sherlock
My Lords, in responding to this amendment, I should like to pay tribute to my noble friend Lord Bach, who has fought tirelessly on this subject for many months.
As we have heard, it is currently possible for a claimant who meets the eligibility criteria to get free legal advice and assistance to cover preparatory work for a hearing. Legal aid may also be available for higher tribunals and courts appeals on a point of law. However, from 1 April, all welfare benefits will be out of scope for legal aid. The context for this Bill makes this all the more complicated because, as we heard from the Minister, the law on sanctions has changed, so claimants may struggle to work out what applies to their case. Further, since there may often be significant delays between alleged breach and appeal, claimants may also struggle to work out what good cause or recompliance mean so long after the event, subjects to which we will return on a later amendment. This brings me to my questions for the Minister. First, will he clarify the position? If a claimant would have been entitled to legal aid to help prepare his case had he appealed within a month of a decision to sanction him, will he still be entitled to legal aid on the same basis should he appeal after 1 April? If the answer is yes, how will this happen? Who will provide the advice and who will pay for it? If the answer is no, given that the Courts and Tribunal Service is likely to be inundated with cases once the deferred decisions pile is unleashed, what assessment have the Government done of the likely delays and the consequent additional cost to the Courts and Tribunal Service of having so many unadvised appellants arriving at once?
If the Government are unable to give satisfactory answers to all these questions, I suggest that the Minister should accept this very mild amendment. If he does not, and my noble friend Lord Bach chooses to press it to a vote, we on these Benches will give him full support. The very least that the Government should do is provide a considered view—impossible beforehand, given the timetable—of the effect on access to legal advice and support of a group which Parliament never intended to be affected by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act. We are pleased to support this amendment.
Lord Freud
My Lords, before I deal with this amendment, I ask the Committee to indulge me as I answer a couple of questions on the last round from the noble Lord, Lord McKenzie of Luton, which may be relevant.
On the question of what sanctions mean for national insurance, if the failure to participate was after 22 October 2012, national insurance is not credited but if it was before 22 October 2012 then it is. On going into work, no sanctions will be applied to people who no longer receive jobseeker’s allowance. That might save some writing.
Lord McKenzie of Luton
On the point about national insurance credit, I am not sure that the Minister’s answer deals fully with the issue that I raised. Perhaps the noble Lord will look at the record tomorrow and write in due course.
Lord Goldsmith
Does the Minister not think that what has just taken place illustrates how wrong it was to bring this Bill in and try to fast-track it through? He is answering, on the hoof, important questions in relation to the entitlement, not of stockpiles but of people. We have this problem because the Bill is being fast-tracked through. The amendments so far have been admirably moved. In relation to Amendment 2, the Secretary of State will, within a month of the Act coming into force, do something which we would normally expect the Minister to tell us before the Bill is passed. Will the Minister kindly reflect on that and consider whether it is not an absolute disgrace that the Bill is being passed in this way, as the Constitution Committee of your Lordships’ House, of which I am happy to be a member, said last week and other noble Lords made clear at Second Reading?
Lord Freud
My Lords, I may be to blame for moving off the particular amendment. We are not having a Second Reading debate now: we are dealing with a set of amendments. Amendment 2 seeks to ensure that the Secretary of State will have to publish, within one month of the Act coming into force, a report on whether claimants would have sufficient access to legal advice and support including legal aid. After 1 April, claimants who appeal to the First-tier Tribunal in England and Wales on welfare benefit issues will not, as a matter of course, be able to claim legal aid. This will be the position for all claimants affected by the legislation where they have applied for legal aid after 1 April. I hope that clarifies the position for the noble Baroness, Lady Sherlock. There will not be entitlement to legal aid after 1 April.
It is important to note that the change in legal aid in no way affects a claimant’s right to ask for reconsideration or appeal to the tribunal. This change in legal aid eligibility will have a limited impact on the claimants affected by sanction provisions in this Bill. Official statistics show that, of the 170,000 claimants sanctioned on ESE or MWA schemes, only around 5,000 appealed to the First-tier Tribunal. Based on these data, we therefore estimate that only between 1,500 and 2,000 claimants in the cases that have been stockpiled—cases, not people—will eventually appeal to the First-tier Tribunal. I also think that due to the nature of these cases it is likely that the vast majority of cases brought before the tribunal will be about a factual dispute where the claimant will need to present their case in plain language and will not require legal support. They will still be able to ask for support from, for example, a citizens advice bureau.
Lord Bach
My Lords, I thank the Minister for his reply. I thank other noble Lords who have spoken, all of them in favour of my amendment. I also thank noble Lords who have asked questions of the Minister in regard to this matter.
I have to say that I sometimes wonder whether the Government really understand how important these issues are. We enjoy a system of law that enjoys a reputation that is well deserved over many years. One of the jewels in the crown of the English legal system is that people, when they hear about it, know that it applies to everyone, not just to the rich and powerful but applies, sometimes to a limited extent, to those who are at the bottom of the pile. That is the glory of the legal system. What the Government do not seem to understand is that it does not matter whether there are 20 cases, 500 cases, or 5,000 cases; these are fellow citizens who should be entitled to the protection of the law like everybody else. Is the Minister really saying that if the numbers were much greater the Government would change their attitude? I do not think that that is what he is saying.
This measure is particularly unfair to those who, through no fault of their own, have been caught by the hiatus that has been caused by the Court of Appeal saying that the regulations put forward by the Government were unlawful.
Lord Freud
Perhaps I may make absolutely clear the point about the numbers. There was a lot of comment from noble Lords opposite that the system would be overwhelmed by the numbers because people did not have legal advice and the system could not therefore cope. The point I am making is that that argument does not stand in the light of the rather small number of cases—between 1,500 and 2,000—that might come towards the First-tier Tribunal as a result of the Bill.
Baroness Hollis of Heigham
If I may intervene, approximately 500,000 sanctions were issued last year. Something like 3,500 or 4,000 of those cases went to appeal. That was last year, before this additional provision hits them. The Minister may wish to reconsider his statistics.
Lord Bach
My Lords, perhaps I may go back for a moment to the hiatus caused by the Court of Appeal decision. It means that those who stood to have the protection of the law as it stood at the time that they were sanctioned or due to be sanctioned will, if the Minister is right, no longer have that protection, merely because of the passage of time and because something has intervened that is absolutely no fault of theirs, but is, I am afraid, the fault of the Government. That seems to be against any British sense of fair play. I beg to test the opinion of the House.
Lord McKenzie of Luton
“( ) A report under subsection (1) will include, but not be limited to, information on the following—
(a) the number of penalties imposed, the type of failure for which they were imposed and the duration of such penalties;(b) the number of demands for reconsideration and the number of subsequent appeals;(c) the effectiveness of the appeals process;(d) the number of penalties imposed upon claimants in receipt of Employment and Support Allowance;(e) whether sanctions originate from a Work Programme Provider or JobCentre Plus;(f) the extent to which claimants understand the reasons for penalties being imposed upon them;(g) the extent to which sanctions are being promoted and whether targets are being applied in relation to penalties;(h) the support available for claimants upon whom a penalty has been imposed, and what additional support such claimants are seeking; (i) how penalties are being applied to those with a mental health or other fluctuating health condition;(j) the effectiveness of the hardship and mitigation provisions;(k) the effectiveness of sanctions in changing claimant behaviour; and(l) the application of the public sector equality duty.”
Lord McKenzie of Luton
My Lords, in moving Amendment 4 I will speak also to Amendments 5A and 6. I look forward to hearing from my noble friend Lady Lister on Amendment 5 and what appears to be a very worthy extension of the scope of the promised review and report, which we can also support. Amendment 4 relates generally to the criteria for Clause 2, and Amendment 5A has been tabled with the strong support of the shadow Secretary of State following press revelations of the existence of sanctions targets and league tables operating in London. It insists that the review specifically report on this matter.
Clause 2 brings some redemption to what is otherwise a deeply unsatisfactory Bill. The clause exists because of the perseverance of my right honourable friends Stephen Timms and Liam Byrne in another place and gives us the hope that at least something positive may yet come from this débâcle. The clause requires the appointment of an independent person to prepare a report on the operations relating to the imposition of penalties. The sanctions which are in scope for the review are those imposed for failures in the period from June 2011, when the defective regulations were first introduced, until February 2013, when the Court of Appeal judgment was delivered. We are told that the sanctions involved amount to around 25% of all JSA sanctions, which is clearly a minority of such sanctions. For those both delivered and withheld, covering the ESE and MWA programme, this amounts to in excess of 300,000 sanctions, mostly relating to those assigned to the Work Programme. The huge growth in the number of sanctions and the amounts involved—on average some £600 for ESE sanctions and £800 for MWA sanctions—are real causes for concern. There are suggestions that the growth of sanctions is a significant cause of the proliferation of food banks.
Recent revelations about targets and league tables are deeply worrying and reinforce concerns that the sanctions regime is being used to control benefit expenditure rather than for its proper purpose of supporting conditionality and changing behaviour. Ministerial denials will cut no ice until these matters have been fully and speedily investigated. We would be appalled if the reports of the suggested behaviour were true, as they would demonstrate not only that a climate of fear is being created within jobcentres but that staff are being actively encouraged to refer customers for sanction, especially to fine customers that they can claim are not fully available for work if they make mention of looking after a grandparent or having informal arrangements sharing custody of children. Jobcentre Plus is supposed to support vulnerable people, not try to trip them up on technicalities.
The review should also cover what management statistics are routinely kept and what use these are put to. At what point of it all are statistics around appeals on reconsiderations subject to any comparison, either intra a Jobcentre Plus area or between areas? Are the data broken down into individual decision-makers and matched against appeal performance? Do these form part of any discussion at appraisal time for individuals? Noble Lords will recognise that it is not even necessary to have formal targets to create a culture where these issues are seen to matter.
At Second Reading the Minister said:
“I have heard today concern from Peers about how DWP issues sanctions to JSA claimants more generally. I would like to make it clear that the department will discuss with the Opposition the terms of reference of the sanctions review”.—[Official Report, 21/3/13; col. 756.]
This is to be welcomed. Can we take it from this that the review need not be limited just to those sanctions identified above? Of course, a discussion with the Opposition does not necessarily mean agreement, which is why we have particularised, in Amendment 4, specific questions posed by the right honourable Stephen Timms in another place. We have added to the list the important matter which my noble friend Lady Lister spoke to at Second Reading concerning the public sector equality duty. I am sure that my noble friend will pick up that issue shortly and expand on her telling intervention that the Government know that they are treading on thin ice on this matter. It is too late for this legislation to be able to benefit from the scrutiny of the JCHR, which makes it imperative that it is covered by the review.
The items included on the list are for the most part self-explanatory and have been discussed numerous times before. However, now is the time to have an independent assessment of what is actually happening in practice. These include how penalties are being applied to those with a mental health condition, or rather fluctuating health conditions, which has been a longstanding concern under this Government and, to be fair, under the previous one as well. As we need to know how in practice the sanction and hardship provisions are really affecting people’s ability to survive, it is important that the review and report are thorough and that sufficient time is available to do the job effectively. However, this should not preclude an interim report, which is what Amendment 6 suggests.
This is fast-track legislation which we now have very limited time to consider further. The independent review was an important consideration for us in our approach to this Bill and we need to nail this down as tightly as possible tonight. Paragraphs (a) to (l) of the amendment must be deliverable, and if the Government are approaching this in a spirit of co-operation it really should not present them with a problem. Will the Minister commit now to these being included in the terms of reference for the review?
Above all, however, we need to be certain that we get to the bottom of the alleged existence of targets and league tables, which is why Amendment 5A is essential. If the Government are committed to their mantra of low targets, they should have common cause with us in accepting this. If they want to tidy the wording for Report, then so be it. I beg to move.
Baroness Lister of Burtersett
My Lords, I rise to speak to Amendment 5 as well as in support of Amendment 4, moved by my noble friend Lord McKenzie of Luton. Amendment 5 complements and amplifies Amendment 4. The point behind it is that the sanctions in scope of the review established in Clause 2 of the Bill represent approximately only a quarter of all JSA sanctions imposed over the relevant period.
If we are to understand how the sanctions regime is working, the review needs to set the narrower group of sanctions in the scope of the Bill into the wider context of the operation of sanctions more generally. I have tried to make sense of the sanctions statistics, and it seems that there has been a massive increase since March 2010 in the number of fixed-length sanctions applied in relation to work-related programmes, and a smaller increase in other varied-length sanctions, albeit in both cases with some month-to-month fluctuations.
The review needs to help us understand what lies behind these statistics in the round. The sense that I am getting from voluntary organisations working in the field is that there is a growing concern about the general operation of sanctions. I am particularly grateful to CPAG and SPAN for the information they have sent me at very short notice.
I do not propose to pursue the question of whether or not jobcentre staff are being set sanction targets. My noble friend Lord McKenzie of Luton has already addressed that point admirably. However, I want to say something about the wider culture that is giving rise to such claims. It has been brought to my attention that some jobcentres are pursuing a practice of “botherability”, which includes bringing in claimants at weekends. CPAG sent me the example of a client of the CAB in the north of England.
The client is a lone parent with two children aged eight and six. The eight year-old has reduced hearing and gets low-care DLA. The client is claiming JSA, housing benefit and council tax benefit. She received a letter at the start of March 2013 calling her into the jobcentre for a compliance meeting a few days later, at 9.30 am on a Sunday, which was Mother’s Day. She asked for a different date but was told that her benefit could be sanctioned. She decided to go to the interview as she could not afford not to, but her two little girls were very disappointed as they were planning a treat for her on Mother’s Day morning. She has been on JSA for six months and says that she has jumped through all the hoops. Last week she said that she had applied for 22 jobs. She does not understand what she has done or not done that has necessitated a compliance interview, especially on Mother’s Day. She says she is pretty disgusted with the way that claimants are treated—can your Lordships blame her? I would be grateful for the Minister’s comments on such practices. Is he aware of them? Does he condone them?
It seems to me that whether or not formal targets are operating, such practices are indicative of an oppressive culture that is aimed at punishing claimants rather than helping them to find work. The point has been made to me that in assessing the overall impact of sanctions we need to be looking at those cases not just where sanctions have been applied but where they have been threatened, sometimes inappropriately; in other words, when claimants have been led to believe that failing to do something is a sanctionable offence when it is not.
I wish to focus on the paragraphs of Amendment 4 that deal with mental health conditions, the effectiveness of hardship provisions and the application of the public sector equality duty. Mind has argued that the incentive structure represented by conditionality and sanctions in back-to-work support for people with mental health problems is a misplaced and counterproductive response to the barriers they face. It cites recent DWP research which found that some staff believe that conditionality and sanctions are not useful or appropriate for some groups of participants, including people with disabilities or addiction problems, and some staff acknowledge that the stress that can be caused can be counterproductive in terms of claimant engagement, which also has implications for paragraph (k), which concerns,
“the effectiveness of sanctions in changing claimant behaviour”.
Mind cites a number of service users who have been in contact. I will take just two examples. The first is:
“I got a nasty letter which said my benefit was at risk because I didn’t attend an appointment and I had to give a really good explanation within a week or my benefit would be cut. It quoted all these regulations I broke. I freaked out because I couldn’t understand what I hadn’t done … It turns out there was a mistake”.
Another example is:
“I was made very anxious and sleepless by what I perceived as threatening letters and terms from Jobcentre Plus and A4e. I became depressed because I could see that my hopes to return to work were being made unrealisable by this route”.
Let us put ourselves in the shoes of these people and imagine how stressful it must be for anyone, never mind someone with a mental health problem, to be treated in that way. Further examples can be found in evidence submitted by Citizens Advice Cymru to the ongoing Welsh Affairs Committee inquiry into the Work Programme. A number of them are where there was failure to take account of mental health problems as good cause for non-compliance—an issue to which we will return when debating Amendment 7.
A 20 year-old female sought advice from a CAB in south Wales. She had missed four appointments and was sanctioned. She suffers from periodic depression and memory problems and relies on her social services support worker to remind her of appointments. On these occasions, the support worker failed to do so. She could not apply for a crisis loan as she had been sanctioned, and she has no money at all. She is also worried that she will lose her accommodation.
Baroness Royall of Blaisdon
My Lords, if I might intervene, there are several noble Lords in the Chamber who from a sedentary position keep saying that this is ridiculous. The only ridiculous part of the debate this evening is the fact that we are debating such a serious issue at 12.20 am, and we should be allowed to hear my noble friend in peace.
Baroness Lister of Burtersett
I thank my noble friend, particularly as I am quoting from a lone mother who is very upset. She says:
“The sanction is over a missed Thursday 9am appointment. My next appointment is 3pm on a Monday. My advisor is well aware that my son is at school for 8.50 am, it takes 25 minutes to get to WP, I collect my son at 3.15 pm yet I’m expected to attend at 3pm for 30 mins. So I’ll be taking him out of school at 2.30pm. I want to help him do well at school, attendance is a high priority of mine”.
Here we have the threat of sanctions demoralising a lone mother who is trying to do the right thing by her son. How making her feel useless and overwhelmed is going to help her in her jobseeking is a mystery to me.
As I have said, I have not been able to do full justice to the briefing that SPAN sent me. I therefore suggest that it be invited to submit evidence to the review established under Clause 2. Indeed, what provision will be made to enable outside organisations with experience of what is happening on the ground to feed evidence into the review?
Of course, the public sector equality duty is not just about lone parents. An international review of the evidence about the operation of sanctions within conditional benefit systems, conducted for the Joseph Rowntree Foundation a couple of years or so ago, warned that evidence suggests that the administration of sanctions is not rational and equitable. The studies conducted in the US have identified racial bias in the imposition of sanctions.
At Second Reading the Minister emphasised that,
“we are trying to design a much more flexible welfare system in which we individualise responses”.—[Official Report, 21/3/13; col. 753.]
It is difficult to quarrel with flexibility and individualisation, but the downside is that they leave greater scope for discrimination, in the negative sense of the term, and they can undermine rights. It is therefore all the more important that the sanctions review allows us to judge whether the administration of sanctions is indeed rational, equitable and consistent with the public sector equality duty.
The Government’s willingness to discuss the terms of reference of the sanctions review with the Opposition is, of course, welcome. I hope therefore that the Minister will accept Amendments 4 and 5, in the interests of ensuring that the review is as thorough and informative as it needs to be, and that the Government will express a willingness to take evidence from organisations on the ground.
Lord Kirkwood of Kirkhope
My Lords, as far as I am concerned this is an important debate on an important amendment and, indeed, it is an important suggestion that we should have a review of the sanctions regime. Most colleagues already know this, but I am a non-executive, non-remunerated director of the Wise Group, an intermediate labour market provider in Glasgow that is subcontracted to the Work Programme, so I have had experience of some of these matters. There are difficulties that need to be ironed out and I hope that this review will take the opportunity to do just that.
I strongly urge my noble friend on the Front Bench to pay careful attention to what is being said, although I think that the amendment is a little ad longam to put in a Bill. I am with the noble Lord, Lord McKenzie, in spirit, but I am not sure that the amendment is necessary. I think that we get the point that he is trying to make—I certainly do.
To the need for a review in this amendment I would add the question of the costs, which have been calculated as a maximum of £130 million. At the risk of being pedantic at this time of night—and I apologise to the House—I refer the Minister to page 6 of the impact assessment and Annexe A on the methodology of the calculation. Paragraph 18 describes the total value of the money allegedly at stake in this Bill. Frankly, I cannot understand it, but that may just be the hour of the morning. It states that the total value equals the number of sanctions multiplied by the number of weeks, although, in passing, I have to say that sanctions are variable in weeks—they are not all fixed-week sanctions, so I do not know quite how you can multiply by a number of weeks when they vary. That is multiplied by the percentage of cases of under-25s multiplied by the rate for under-25s and the percentage of cases of over-25s multiplied by the rate for over-25s. However, the final clause puzzles me, because that total value is,
“multiplied by reduction due to successful appeals and hardship”.
You have a multiplier multiplied by a reduction. Either my arithmetic is not good, which it is not, or the language in that paragraph is wrong. If the language in that paragraph is wrong, I would like to be told, because that is what we are being invited to consider as the potential cost to the taxpayer as a result of these changes. If the impact assessment has not got the methodology of the calculation correct, it would be good to know.
My other point is about recompliance. My experience in the Wise Group is that although many of these sanctions are originally set at, say, 26 weeks, the participant in the programme gets the message that they are going to lose out rather quickly and they come back into compliance. They are therefore reduced from a 26-week penalty to a four-week penalty as a matter of course. I do not know to what extent that is factored into the calculation of the total value. There are a number of methodological problems that I do not understand. One of the things that this report should do—I am not suggesting for a moment that we need answers to all these things this evening—is to look carefully at exactly what the total amount at stake in this Bill is. We look forward to getting that confirmed one way or the other.
Briefly, my view is that the Work Programme was introduced with indecent haste. The flexible New Deal programme was in the middle of its operation and in 2010, in a very short space of time, everything was changed. I understand the need to take away everything that went before, but everyone I now talk to tells me that the loss of corporate knowledge is a difficulty in working with the department. A lot of serious and expert people are no longer in the positions that they had. Bringing this programme in so early and losing such a lot of corporate knowledge over a short space of time is bound to lead to symptoms and consequences of this kind.
Part of the problem generated by these sanctions is that the notices that are given to participants in these programmes are often handled not by prime contractors but by subcontractors. I do not believe that some of them are authorised by the Secretary of State as they should be under the Jobseekers Act 1995, which is part of the reason why some of these notices are not detailed and informative. Therefore, it does not surprise me that the court took the view that it did. That is something that this review should be looking at as well.
Finally, one thing that I am clear about from my Wise Group experience is that a lot of participants in these courses do not appeal against sanctions because they cannot do without the benefit for the duration of the pending appeal—it is a serious loss of money to them. I hope that this will be investigated in the review, but we really need to look at whether the sanctions are being properly scrutinised in terms of the numbers who go to appeal. I think that people just throw in their hand because they cannot afford to do anything else.
In conclusion, there is a lot of important work to be done. I hope that the review will be serious in undertaking that work and making the results and conclusions available to the rest of us so that we can get this sanctions regime better adjusted for future use in the jobseeker’s allowance regime.
Lord Freud
My Lords, I will address Amendments 4, 5, 5A and 6 together. The purpose of these amendments is to place in the Bill detailed requirements for the independent report set out in Clause 2.
I should be clear that Clause 2 provides for an independent review of the operation of provisions relating to the imposition of sanctions which would, without this legislation, be unlawful. The amendments could be seen to imply a much wider review; it is not a full review of the operation of sanctions, although clearly there could be wider relevance. At least one of the things covered in the amendment is not within the scope of the Bill: paragraph (d) asks about the number of penalties imposed upon claimants in receipt of employment and support allowance. I can answer that today, as the Bill is only concerned with JSA claimants.
The Government are happy to consider a wide range of areas for the review, but it would be unhelpful to lock down the terms of that review at this stage. Despite my earlier comments, the amendments list a number of areas the review could usefully consider. I am happy to confirm what I said on Thursday, and give a commitment that we will discuss further with the Opposition the scope of the review. Within that process, we can look at the point raised by the noble Baroness, Lady Lister, on provision for outsiders.
Amendment 5A would ensure that the independent reviewer makes an assessment of the extent to which senior managers in Jobcentre Plus have used targets in the operation of sanctions. This amendment is completely unnecessary. There are no targets for sanction referrals. The Government have made a point of removing the vast majority of targets within Jobcentre Plus. It is regrettable that loose drafting of an internal e-mail suggested otherwise. If noble Lords look at sanctions, there is no clear trend in the proportion of the caseload who receives them. Prior to 2007, the rate was running at around 4%; since then it has fluctuated between 3% and 5%. There is not the clear trend in the growth of sanctions which some people have been claiming.
Baroness Hollis of Heigham
My Lords, I do not doubt the Minister’s honesty and integrity in his statements about targets at all. However, the staff clearly do not believe him. It is clear from the evidence that we have seen—the leaked e-mails and all sorts of other examples coming to Members of Parliament and so on—that the staff in local offices believe, because they are told by their managers, that they have to increase the number of sanctions. In the e-mail, the manager of the particular jobcentre was criticised and told that she would be subject to first-stage disciplinary hearings because that office was something like 93rd out of 101 in sanction production; they should have been producing something like 25 a week and were only producing four or six a week. Therefore: “Guys, we should raise our game”.
The e-mail was not loosely drafted. It was very precisely drafted; we have all seen copies of it. That e-mail, from someone senior in the office to their staff, made it very clear that if they did not increase a number of sanctions, they, too, would be involved in a disciplinary process. That is believed by those staff and by staff across the country. I do not doubt the Minister’s word, or that he does not intend that to be the case. What is he going to do, therefore, to ensure that local offices no longer behave in this way?
Lord Freud
My Lords, let me make very clear the difference between having targets, having business or management information, and doing something with that information. Clearly, you collect these data not just to answer parliamentary questions but to run the business. It is used to look at where there are outliers and peculiarities, and what the norms are. When a particular jobcentre may be well outside the norm on either side, you might want to ask it why that was the case. Was it justifiable, and what were the dynamics of that? In some cases you are clearly looking at particular parts of the operation that are not operating in line with the norms. That is not having a target culture. A target culture—as the noble Lords opposite will know, because they were running one in many parts of the public services—is where you incentivise and drive performance based on particular targets. We do not do that. We do not have targets. We do, however, have management information and, as I say, we need to understand why outliers exist.
Baroness Hollis of Heigham
My Lords, will the Minister explain why this senior staff member—the manager of the office—told the staff underneath her that unless they increased the number of sanctions she would be subject to the first stage of a disciplinary procedure, and that that, in turn, would mean that she would have to discipline them? How does he explain that?
Lord Freud
My Lords, I am not going to pick up a particular case because I do not have the detail on it. It would not be appropriate for me to hazard a guess on what was behind a particular e-mail or a particular concern.
Lord Touhig
My Lords, I hear what the Minister has said, and he is held in high regard across the House. In view of what my noble friend Lady Hollis has said, will he therefore initiate an investigation into how this memo came about? Will he come back to the House to explain what action the Government are taking on this? Somebody is clearly acting against government policy, and it should be stopped.
Baroness Hollis of Heigham
Will the Minister also, therefore, ensure that all DWP local offices receive the same information—that this is to be deplored?
Lord Freud
My Lords, I must repeat what I have just said. Clearly, we have internal management information. It is vital that we keep it, and we publish a lot of it. We need to understand why some areas, some jobcentres, have higher rates than others and why some have lower rates. Some may have very good reasons for having lower or higher rates, while others may not. We therefore need this information to correct the anomalies, and that is normal business practice. It may be that in particular cases a jobcentre manager is told, “You are running very high or very low figures, and you cannot justify the reason for that, so you need to get more into line”. It may happen. I have not got the particular details.
Baroness Hollis of Heigham
In that case, what is the difference between coming more into line and targets?
Lord Freud
The noble Lords opposite know exactly how targets operate because they operated a target regime. Targets are when people are incentivised to perform to particular figures.
Baroness Hollis of Heigham
What if they are incentivised by the threat of being punished?
Lord Freud
They are usually incentivised to reach targets, and we do not run a target regime. The no-targets message has gone out repeatedly.
Baroness Farrington of Ribbleton
My Lords, I fail to understand the Minister. Surely if someone is asked to regulate their business, as he calls it, in order to get to the norm, what is the difference between that and a target?
Lord Freud
The difference is that where someone is not performing in line with the rest of the business for no good reason—in other words, where there is nothing different in the underlying constituency of the business—they are not operating the business in line with the standards that we have. That is entirely different from having targets, because it is understood that no figures are going out with instructions to achieve something. The message that there are no targets goes out repeatedly to jobcentre managers; there has been a reminder from the Work Services Directorate that there are no targets; and we will investigate if people have misunderstood that approach.
Baroness Stowell of Beeston
It is Committee, but the Companion guides us by stating that, during any stages:
“Lengthy or frequent interventions should not be made, even with the consent of the member speaking”.
My noble friend is very tolerant and I know that he will keep responding to interventions. However, the hour is late and there have been several interventions.
Baroness Farrington of Ribbleton
My Lords, this is Committee. Many of us are deeply distressed about the Bill. To seek to curtail a discussion where clearly the Minister is saying that people will be asked to comply with a norm if they have no good excuse not to, is to my mind—and, I suspect, to the minds of other noble Lords—little different from a target.
Lord Freud
My Lords, I have answered the question. I will re-emphasise that we do not have targets, we have management information. I may not have convinced noble Lords on the other side, but they should be very familiar with running targets because that is how they tried to run the economy. We do not run targets because they create perverse behaviours. We collect information in this area, not least because it is required for public purposes. Furthermore, we need to run a business and we need to understand what different areas are doing in order to do that.
Referrals for sanctions are made on the merits of each case. Decisions on sanctions are based on evidence presented that is independently reviewed by decision- makers. The fact that only three-quarters of decisions made are upheld by these decision-makers proves the robustness of the process. Furthermore, there is an independent appeals process against decisions, so even if a target regime were in place, which it is not, claimants who were wrongly sanctioned could successfully appeal.
The flexible business model means that managers need to understand the reason for outliers. While differences can be for good reasons such as local labour market conditions, senior managers need to monitor the overall situation in order to spot and correct anomalies.
Given what I have said, it would be odd to require the independent report to cover a sanctions target that does not exist. However, we are happy to give reassurances that we will make clear the position in respect of targets and league tables. I have done my best today, but clearly more may need to be done for some noble Lords.
Lord Rooker
At the risk of upsetting the Whip, I have a question. The Minister does not seem to have addressed one of the examples given by my noble friend. Will he give a personal guarantee that no office will open and call people in on Easter Sunday? How many offices are opening on Sundays? Are they in England, Wales and Scotland? What is the policy of offices opening on Sundays to call in people in the way we heard in the example earlier on? He must address that because this is obviously something quite new.
Lord Freud
My Lords, I do not have the information on Sundays, particularly Easter Sunday. The underlying issue is compliance checks using different days for attending the jobcentre, which are an important element of Jobcentre Plus’s toolkit to combat benefit fraud and confirm conditions of entitlement to benefit. That can include asking claimants to attend a jobcentre on a day other than their normal signing day. That is not something that is different under this Government.
Baroness Lister of Burtersett
I am sorry to intervene, but does the Minister think it is reasonable to ask a mother to come in on Mothering Sunday?
Lord Freud
My Lords, clearly, I cannot talk about examples when I am not familiar with the particular example. It may have been a strategy. As I said, there is a general strategy to prevent non-compliance by using the device of asking people to come in on different days. Sometimes people are asked to come in on every day of the week. The example I am thinking of is the five workings days, but I have seen examples of that. I saw that example under the previous Government to be honest. I do not know why noble Lords opposite are looking aghast as this was absolutely standard procedure under the previous Government and nothing has changed. It was standard procedure and has been maintained because it works in areas where we are concerned about benefit fraud.
On Amendment 4, it is worth noting that for sanctions more broadly much of the information that the noble Lord, Lord McKenzie, sets out in his amendment is already published by the department. For example, we have published, and will publish every six months, tables setting out the number of sanctions issued and the number of reconsiderations and appeals. The latest figures published for employment, skills and enterprise schemes and mandatory work activity show that up to October 2012 around 170,000 sanctions were issued. There were just over 50,000 reconsiderations, with claimants being successful in just over half of them. Following this there were about 5,000 appeals to the First-tier Tribunal, with claimants being successful in around a quarter of them. I hope that gives enough reassurance to the noble Lord and the noble Baroness that the independent review will be comprehensive and in the spirit of Clause 2. I therefore urge them to reconsider the position and not press their amendments.
The noble Baroness, Lady Lister, raised a point on hardship and the new hardship regime. The new hardship regime will not apply to these jobseeker allowance claimants. It will come into effect only when universal credit is in place. The lone parent’s caring responsibilities are taken into account when setting work search requirements. In the example used by the noble Baroness, they can be used in citing a good reason for non-compliance.
I turn now to the linked Amendment 6, the purpose of which is to ensure that there is an interim report on the operation of the provisions relating to the imposition of a penalty, as well as the report after 12 months that the Bill already requires. I am as keen as the noble Lord, Lord McKenzie, that the review is expedited and we will endeavour to complete it as quickly as possible. However, it may help if I set out why an interim report would be unhelpful in providing a complete picture. A claimant who has a sanction imposed on them has 13 months to bring an appeal against that sanction, so by imposing a six-month deadline for an interim report we would miss those appeals made at a later point. That could then give a misleading view of the overall picture in a way that could be unhelpful. As I said earlier, we are committed to producing a report as soon as is reasonably practicable and it would be far better to wait for the full annual report. I hope that the noble Lord will reconsider the position and not press that amendment.
Lord McKenzie of Luton
My Lords, first, I thank my noble friend Lady Lister for her support for this amendment. I believe that my noble friend made a powerful contribution and painted what I think we would all agree is a very troublesome picture of what is happening on the ground in too many instances. She specifically asked whether the review would receive evidence from outside bodies, and I do not think that the Minister has addressed that point. I thank the noble Lord, Lord Kirkwood, too, for his support, at least in spirit. I believe that he is absolutely right that the projected cost of £130 million is excessive. Of course, from the Government’s point of view, the higher that figure, the greater the weight given to the opportunity of retrospective legislation. But I think that the noble Lord’s analysis is right.
The Minister’s response was desperately disappointing generally. On the question of targets, let me be clear about what Amendment 5A says. It seeks a report that,
“will include an assessment of the extent to which jobcentre managers have applied targets on the issue of sanctions”.
I accept the Minister’s words—he would not wish to mislead us—on whether Ministers have targets, but the question is whether as a practical matter targets are being applied within certain Jobcentre Plus premises. The noble Lord says that it is about business information and that it is necessary to spot outliers, but the one document that we have as an example is worth reading. It says:
“I have until 15 February, along with other area managers, to show an improvement, and then it is a performance improvement plan for me”.
A PIP is the first stage of the disciplinary process, as my noble friend Lady Hollis identified. It goes on to say that,
“if I am on a PIP to improve my team’s Stricter Benefit Regime referral rate I will not have a choice but to consider implementing PIPs for those individuals who are clearly not delivering SBR within the team”.
It seems to me that there is an awful lot of pressure there, whether you label it as pressure driven by targets or by some other means. It is pressure, and it is changing the culture of the organisation. What does it lead to? It leads to advice like,
“listen for telltale phrases ‘I pick up the kids’, ‘I look after my neighbour’s children/my grandchildren’ or just ‘I am busy’—all of which suggest that the customer may not be fully available for work, even cases where a parent shares custody can be considered if the arrangement is informal. Not that I am suggesting you go there, but you need to consider each case individually”.
Is not the Minister troubled to understand that those sorts of memos are floating around within Jobcentre Plus? Is that not entirely contrary to what he himself has asserted? I cannot believe that he would feel comfortable about that happening. That is the purpose of the amendment—to find out what is happening or has happened in Jobcentre Plus generally. It is not a question of whether the Minister has set down a particular target but what is happening within those Jobcentre Plus premises and the impact that it is having on people being referred for sanctions.
Again, the hour is late, and I will withdraw the amendment, although when it is called I propose to test the opinion of the House on Amendment 5A, which is the key issue dealing with the sanctions and the revelations that the press have identified, because there is a pressing and clear need for that to be addressed.
Lord McKenzie of Luton
“( ) A report under subsection (1) will include an assessment of the extent to which jobcentre managers have applied targets on the issue of sanctions.”
Lord McKenzie of Luton
I beg to move. I wish to test the opinion of the House.
Baroness Sherlock
“Guidance
Within a month of this Act coming into force, the Secretary of State will issue guidance on the way in which claimants may be entitled to mitigate any penalty imposed upon them under the 2011 Regulations or the Mandatory Work Activity Regulations following the coming into force of this Act.”
Baroness Sherlock
My Lords, the amendment would require the Secretary of State to prepare guidance on how claimants might mitigate any penalty. This is necessary because there are some serious questions for the Government to answer about how the sanction system will work in practice after a delay of many months, potentially longer, and how a claimant is able to limit the effects in the way in which Parliament envisaged when it passed the legislation.
I want to turn briefly to the question of recompliance raised by the noble Lord, Lord Kirkwood of Kirkhope. The Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011—the regulations that were found to be at fault by the Court of Appeal—explain the consequences of failure to participate in the scheme covered by those provisions. Regulations 8(4) to 8(6) provide that a claimant who fails to participate in an activity may face a loss or reduction of benefit for a period of two, four or 26 weeks. Regulation 8(7) provides that if someone has been sanctioned for 26 weeks but has recomplied, the period for which benefit is stopped is reduced to four weeks—a point explained by the noble Lord, Lord Kirkwood. Recompliance is defined in Regulation 8(8), which refers to the claimant as “C”. It states:
“C will be taken to have re-complied where”,
on the same date, before or,
“after the date on which the Secretary of State determines that C has failed to participate in the Scheme, C complies with … (a) the requirement as to participation in the Scheme to which the determination relates, or (b) such other requirement as to participation as may be made by the Secretary of State and notified to C in accordance with regulation 4”.
Here come the questions, and I apologise that they are not very exciting. Can the Minister tell the Committee how this will work some months after the event? Let us say that a claimant with a fluctuating health problem has failed to turn up for a training course imposed as part of skills conditionality and has been sanctioned for 26 weeks. The course ended last September. Had he been sanctioned at once, he could perhaps have attended the remaining days of the course and had the sanction reduced from 26 weeks to four weeks. Can the Minister explain how that person could now show compliance? It is obviously too late for him to recomply under Regulation 8(8)(a), but perhaps he could recomply under sub-paragraph (b). If so, can the Minister explain how that will work? If the person has been given any subsequent direction and has complied with it in any way at all, will that count as recompliance; does the recompliance have to be specific to the particular scheme that he was put on; or does it have to be specific to the requirement made of him at the time—that is, that training course? Presumably, the Government would want to make sure that this person was not treated any less fairly than he would have been had the Government’s regulations and notices not been found to be unlawful, but how would the Minister do that? If he is not in a position to explain to the Committee in detail now, I would press him to accept the amendment, which simply asks that he issues guidance explaining to jobcentre staff how they should act in order to put the claimant in the position in which they would have been but for the delay caused by the failure of the regulations to be accepted by the Court of Appeal as lawful.
My second question relates to the question of good cause, which the Minister referred to at an earlier stage. If a claimant fails to participate in the scheme, they are notified by the DWP and will be sanctioned unless they show what is known as “good cause” for their failure to participate within five working days.
Let me give another example. I am interested in exploring how good cause works in this time-delayed world. Let us imagine a single mother who was due to attend a course but missed the registration on the first morning because her 13 year-old son was up all night vomiting and she could not take him to school. She could not leave a sick 13 year-old at home alone the next day, so she phoned up the course and explained what had happened and that she would not be in that day. She talked to the receptionist who took a message and said that it would be passed on. The message was not passed on and when she turned up the next day she was told that she could not join the course because she failed to be there for the start. I should say that I have heard of real cases where precisely these things have taken place, and I am sure that the Minister has as well. Can the Minister help us to understand what would happen in that circumstance?
I understood from what the Minister said early on that that lone parent would have been written to at the time that this alleged breach took place, asking if she had any good cause for failing to turn up for the course. So what happened then? Presumably the decision-maker did not make a decision at that stage, so perhaps this would be sat on from that point, say the previous September, until it got around to being processed from the pile of deferred decisions. Would she at this stage have to explain more about what happened? For example, if there were not enough information in the explanation, did the decision-maker go back at the point at which this happened last September to say, “Tell me more”, or will that happen, say, the following April or May? If so, will she be expected to recall precisely what happened with this child’s bout of sickness last September, when it is now potentially April or May? Will she be asked for evidence for a bout of sickness that may not have required a medical appointment if the child was recovered within 24 hours? If she did give all the information but she was then deemed not to have good cause, presumably she could now appeal. If so, can the Minister explain to the Committee how the normal standards of evidence will be relaxed, if at all, given the serious time delay, to deal with the evidential problems and the possible recall problems that come with that?
Finally, can the Minister explain which set of regulations will apply to someone who committed the alleged breach under the old sanctions regime? Will he or she be sanctioned using the provisions that applied at the time of the alleged failing, because of course the ability to reduce the sanction by recomplying has since disappeared? Can the Minister reassure us that in fact someone will be able to reduce a sanction period by recompliance even if such an option no longer exists under the current regulations?
I apologise for having to go into such detail at this stage, but I did not choose to be conducting a Committee stage at quarter past one in the morning. I do think, if we are going to be asked to fast-track a Bill of this complexity and importance, that it is very important that the Committee is given every opportunity to understand precisely what the Government are trying to do to these people. I beg to move.
The Deputy Chairman of Committees (Lord Haskel)
My Lords, I must inform your Lordships that the result of Division 3 on Amendment 5A should have been Contents 35, Not-Contents 139—not 137 as announced.
Baroness Hollis of Heigham
My Lords, I should like to support my noble friend by saying that I am mortified about the additional numbers on the other side as the result of our strenuous debate. I thought that we might have persuaded a few more to abstain.
I hope that the Minister can agree to this amendment. There are three broad reasons why we need new guidance and clarity on the sanctions regime: the issue of targets/norms, good cause and compliance. The Joseph Rowntree research that came out in December 2010 shows that claimants have a low level of awareness of sanctions and that the more disadvantaged they are, the higher the risk of sanctions and the less knowledge they have about them. This applies to young claimants, those with a disability, those with a poor education, those with large families and those from an ethnic minority. The research shows that they are not out to flout the system but that they have poor information or non-intentional behaviour such as forgetfulness. In that context, I want us to support my noble friend’s amendment.
I turn first to the issue of targets. The Minister was at some pains to explain to us earlier that “targets” is a relevant word only where you are rewarding behaviour, but when you are punishing it, that is a “norm”. We know that if you exceed, you get a target, and that if you underachieve, that is a norm. It is clear that targets or norms, whatever we want to call them, are the enemy of mitigation. Using them to allow the Secretary of State to claim clean hands while the staff do the dirty work under pressure from above is completely unacceptable. We need clear evidence, guidance and clarity from the Minister on the sanctions regime to ensure that targets do not stand in the way of mitigation. If people are allowed to mitigate and sanctions numbers therefore reduce, so will the targets, and staff will obviously have an incentive to fail to ensure that claimants follow good procedure and appropriate behaviour because they themselves face disciplinary action. That is a moral, or immoral, position, into which they should not be put.
Secondly, we need this guidance to ensure that claimants are aware that they may be able to mitigate sanctions by establishing good cause. My noble friend gave the example of the lone parent unable to attend an interview. Every parent in this House has had a child who has been sick and they may have missed an interview as a result. There is no doctor’s evidence because, by the next day, the child is well. Certainly that happened to me on numerous occasions. However, in this new, suspicious, look-for-any-benefit-cutting-excuse, hunt-them-down culture, of course we all now assume that any lone parent will keep her child at home and away from school simply to avoid an inconvenient interview. She says that the child was poorly, but why believe her? As she can provide no evidence, the office has got her and another tick is put on the whiteboard.
The third reason for needing guidance on mitigation is that, as the courts have indicated, claimants need to know and have a right to know how they may end their sanction by complying with jobcentre requirements. This issue marks the crucial line as to whether we are using sanctions to reduce the benefit bill or whether we are using them to change behaviour. If it is the first, giving little information or hope for people to find their way back into the system, then the Minister risks creating a growing underclass without income, without much hope and without any help. But people, as Carlyle pointed out 150 years ago, will not starve quietly. Some may have families to help them, and they will be the relatively lucky ones. Some may beg, while others will cross the line into thieving, drug selling and semi-criminal behaviour. This is what the Rowntree trust warns us of. They will come to regard social security laws, in so far as they understand them, and increasingly other laws, as not applicable to them. We will all then pay a high price. If it is the second—that instead of simply trying to cut the benefit bill on any hook we can find, we want people to change their behaviour and sanctions are part of the tough love regime, as I believe they should be—then we absolutely must encourage people to end sanctions by complying with what they are expected to do. When they do so, we should rejoice, even though it means fewer ticks on the whiteboard of targets to be met.
Research evidence shows up that up to two-thirds of those sanctioned do not know the whys or wherefores, or what they can do about it. The Minister, whose integrity we totally respect, accepted at Second Reading that that was indeed the case and that therefore the issue of sanctions had to be revisited. If the issue has to be revisited, he should now accept my noble friend’s amendment, because it amplifies what he himself has already agreed. Mitigation means ending the culture of targets and, incidentally, protecting any whistleblowers in the process. It means ensuring that people have the help that they need to claim good cause where that exists and it ensures mitigation so that claimants will know how they can end the sanction by conforming to benefit requirements. I hope that all in this Committee agree on these three goals. In which case, I hope that the Minister will accept the amendment.
Lord Freud
My Lords, this amendment, which would require the Secretary of State to issue guidance on the way in which claimants can mitigate any penalty imposed under the ESE or MWA regulations after the Act comes into force, is unnecessary, as this information is provided to claimants as a matter of standard practice. When a claimant is issued with a benefit sanction, they are as a matter of course sent a letter explaining the decision made and what effect it will have. The letter clearly tells claimants that if they want to appeal the decision, they should fill in leaflet GL24, If you think our Decision is Wrong, and that claimants can,
“get this leaflet from your Jobcentre or Social Security Office”.
Attached to the sanctions letter are two leaflets: leaflet 1NF1, on appealing against a decision and leaflet JSA9, the hardship leaflet). I have both of these leaflets with me today.
The leaflet on appealing against a decision explains in plain English who the claimant should contact if they want to know more about the decision or, if they think the decision was wrong, how to appeal it and what support they may get in formulating that appeal. The hardship leaflet explains what financial support is available, the eligibility criteria and how to apply for hardship, and provides the form they must fill in to claim hardship. The whole process is done as a matter of course and, indeed, is on the record and available for anyone to see how those leaflets work.
I turn to the point raised by the noble Baroness, Lady Sherlock, on recompliance. If a claimant has been issued with a 26-week sanction but has complied in the intervening period, they will be served with a four-week sanction. Recompliance is not particular to any scheme and can include participation in any other scheme. Of course, the sanctions regime has changed, so if the failure to participate was before 22 October last year, the old regime, which includes the re-engagement, applies. However, if the failure to participate is after 22 October, the current sanctions regime, which has no engagement and which builds up, will apply. That goes on the time of the failure to participate.
The noble Baroness was concerned about the time between the failure and the sanction being imposed on the stockpiled cases. I am sorry that I have not yet found a better word than stockpiled but it is for cases not people. As I said on an earlier amendment, the process of finding that information takes place immediately on the failure. They receive a letter and need to provide good cause at that point. Clearly, where there is a problem and there needs to be amplification, and there is a problem of information or evidence, the decision-maker will have to take that into account in the normal way, given that there is a gap and it is a justifiable lacuna.
As a matter of course, the cases that we have stockpiled will get issued with a sanction and receive the standard letter, and those accompanying leaflets that I outlined. This amendment is therefore superfluous and I ask the noble Baroness to withdraw it.
Baroness Sherlock
I thank the Minister for that reply and, in particular, for clarifying that it will be the sanctions regime that was applicable at the time of the alleged breach that would prevail. I will just ask him to clarify one point more specifically. I was glad to hear him say that any subsequent direction can count as recompliance and that it did not have to be something specific to the particular scheme or course originally. It can count, but will it?
Lord Freud
If it fits the norms within which that re-compliance operates, then it will. I am not sure whether there is huge distinction, in this case, between the may and the will.
Baroness Sherlock
I am not trying to be pedantic, although I confess that it is a hobby. The reason it matters in this case is that normally, if I were sanctioned for not participating in a course, the obvious way to comply is to start going to the course. As the course has long since finished, there are all kinds of unrelated things that may have happened in between then and now, which would not be the obvious way for me to re-comply with a direction on something that has long since ceased. Therefore, the fact that these things could count does not necessarily mean that they will. The reason that I wanted guidance was precisely to make clear to jobcentre staff that in these circumstances they should interpret any form of compliance as being enough. I encourage the noble Lord to say that on the record.
Lord Freud
What I will say on the record is that we will ensure that guidance to jobcentre staff will make this absolutely clear.
Lord Freud
My Lords, we will make sure that the particular options here are laid out for jobcentre staff so that we do this consistently. I can add that recompliance will count if it is a scheme under the ESE regulations.
Baroness Sherlock
That was worth waiting for. I thank the Minister for that. I still think that this amendment is worth while. Although the Minister regards it as superfluous, the information that goes out to claimants actually relates specifically and only to complaints and hardships. The other obvious way to mitigate the effect of a sanction is recompliance and in fact none of that information does relate to recompliance. However, in the light of what he has just said, and given the lateness of the hour, I beg leave to withdraw the amendment.