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 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 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.
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 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.
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.
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.
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 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 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 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 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 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.