Grand Committee
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I remind the Committee that if there is a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
Draft Enhanced Terrorism Prevention and Investigation Measures Bill: Joint Committee Report
(11 years, 7 months ago)
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Lord Plant of Highfield
That the Grand Committee takes note of the report of the Joint Committee on the draft Enhanced Terrorism Prevention and Investigation Measures Bill (HL Paper 70).
Lord Plant of Highfield
My Lords, I think it has fallen to me, as the longest serving Peer on the Joint Committee, to introduce its report on the ETPIMs Bill. This creates the final part of the architecture of the arrangements to replace control orders. We need only look around today to see that the atmosphere around this is somewhat less feverish than it was when control orders were introduced in 2005, when both Houses of Parliament sat throughout two days and one night. Indeed, we acted as Time Lords, turning the Friday into a Thursday to preserve the continuity of the Sitting of the House.
It is very important that this Bill had detailed pre-legislative scrutiny because it is a draft Bill that may never be introduced into Parliament. It is designed to provide arrangements for preventive measures to be used in a situation of emergency, which of course may never arise, in circumstances in which the provisions of the 2011 TPIMs Act are judged to be insufficient. The Bill will, by definition, be introduced at a tense and worrying time, and would be expected to pass through Parliament as an emergency measure in double-quick time. In these circumstances scrutiny will be very limited, so pre-legislative scrutiny is all the more important as the Bill is not likely to receive intense scrutiny in the emergency situation that will provide the context for the Bill’s legislative career in both Houses. It is an unusual approach, to say the least. It has been called by one person—I have forgotten who—a “back pocket” Bill; it is a Bill that the Government have in their back pocket, which has been scrutinised by this process and will be brought to the House, if necessary, in emergency circumstances.
I have to say that the Joint Committee was not convinced that it would be necessary to proceed in this way. The 2011 Act could have been extended. Extra powers could have been incorporated into it, which could then be activated by laying an order. This would have meant that the powers themselves would have been scrutinised properly in both Houses of Parliament prior to such a different Bill passing through the Houses. One can appreciate the political difficulties in having something on the statute book that quite a few well informed commentators regard as being a version of control orders. I do not think that myself, but it is politically difficult. I shall come to the relationship between the provisions of this Bill and control orders in a few minutes.
However, we are where we are and pre-legislative scrutiny is now the only real scrutiny to which the Bill will be subjected, so this process is of utmost importance. The Joint Committee would still like to see the TPIMs Act and the ETPIMs Bill consolidated into one piece of legislation at the earliest opportunity, although the Government seem to have rejected that in their response to our report.
Control orders, introduced by the previous Government, were always rather controversial. The TPIMs and ETPIMs regimes are intended to succeed control orders and produce a new regime that is more compatible with individual liberty—to be “more liberal”, in the words of the Joint Committee’s report. How, in fact, do ETPIMs differ from control orders and, indeed, from TPIMs? There is no doubt that there is an overlap of purpose, and some overlap of provision, with control orders. However I will stress the differences between the ETPIMs arrangements and control orders.
The first difference is very significant: control orders could be imposed on the basis of the Secretary of State having “reasonable suspicion” that the suspect was engaged in terrorist activity. In the case of TPIMs, it is based on “reasonable belief”. In the case of ETPIMs, it is based on the balance of probabilities, and this is regarded as a more objective test. However, we have received contrasting and somewhat contradictory evidence about how significant this change is. It is represented as raising the threshold by two notches: from reasonable suspicion through reasonable belief to the balance of probabilities. The police evidence from Deputy Assistant Commissioner Osborne certainly regarded it as a significant and real change.
However, the evidence we have had from lawyers on this point has been a bit more guarded. They have taken the view that it is a somewhat semantic distinction, since, in their view, in reviewing control orders judges have tended to use the higher standard, namely the balance of probabilities. So there is a disagreement about whether the threshold has in practice been raised. Certainly, in theory and rhetorically it has been raised, but there is this doubt. We should give quite a lot of credence to the view of the senior police officer about his own practice in evidence-gathering and so forth. He certainly saw the new standard as having some important consequences for police work.
Another significant difference between control orders and TPIMs is the range of restrictions an ETPIM order can impose on a suspect. Under control orders, the Secretary of State had extensive powers to impose relocation; under TPIMs, the Secretary of State could require residence overnight at a specific address. Under ETPIMs, the Secretary of State would have the power to impose a curfew of up to 16 hours—the point about the 16 hours being to make it ECHR-compliant. The court has ruled that more than 18 hours would be a deprivation of liberty. The Secretary of State would also have the power to require a suspect to take up residence in a facility provided by the Government. Under ETPIMs, there could be a complete ban on the use of electronic equipment, compared with a partial ban under TPIMs. Thus the Secretary of State would have the power to prohibit someone subject to a control order from associating with specific individuals without the consent of the Secretary of State.
It seemed to the committee that the differences between ETPIMs and control orders were significant in terms of the evidential basis. DAC Osborne argued that they had led to a change in police practices to meet the requirements of the more rigorous standard and the various impositions I just mentioned. The requirement about hours of curfew had been, as I mentioned earlier, devised to make the ETPIMs arrangements ECHR-compliant, and the Joint Committee certainly welcomed this. Furthermore, the requirements of an order under ETPIMs are limited to those set out in Schedule 1 to the Bill.
This is a big advance on control orders because the 2005 Act just gave a list of potential impositions on suspects or controlees. This is rather burnt into my soul, since I had quite an altercation with the then Home Secretary about it. However, the list that was given was for illustrative purposes only and the Secretary of State could in fact impose any constraint on the situation of a controlee so as to disrupt the attempt by that person to engage in terrorism, whereas under ETPIMs the Secretary of State will be able only to impose those constraints actually set out in Schedule 1.
There is another difference from control orders in that an individual ETPIMs order lasts at most for two years. It can of course be imposed again if the potential controlee has been engaged in “new” terrorist activities or terrorist-related activity. “New” is given a definition in the Bill that is rather different from conventional and ordinary uses of that word, but it is important that it is defined because it is new terrorist activity that provides the justification once the two-year deadline has been reached for reimposing an ETPIMs order on a controlee. These are substantial differences from control orders and it is important to recognise that.
As with TPIMs, as soon as an order under the ETPIM regime is imposed on an individual it would immediately trigger an automatic review hearing of the Secretary of State’s decision to impose the notice. The purpose of the review is to determine whether the circumstances in Clause 2 had been met by applying the principles of judicial review, such as rationality, proportionality, legality and so forth. There would be an immediate review, using judicial review principles, of the imposition of an ETPIM order.
However, since the advent of the Human Rights Act there has been a strong emphasis in the courts on proportionality in the assessment of executive action that impinges on rights. Proportionality has now become the central strand in judicial review. Some jurists certainly take the view that it is very difficult to distinguish between a judicial review that puts proportionality in a central position and a merits review, the reason being that if a court can quash one or more of the individual restrictions on a person under an ETPIM order because it is regarded as disproportionate in relation to a legitimate goal, it is very difficult to see how that judgment can be anything other than a merits sort of judgment about the order.
The committee favoured that idea of a full merits review because proportionality is central to the sort of jurisprudence that flows from the ECHR and it is then very difficult to distinguish between a proportionality review and a merits review. The noble Lord, Lord Carlile, said in his evidence to us that the difference between the two forms of review—a judicial review and a merits review—was a distinction without a difference. I suppose that as a previous reviewer of terrorism legislation he is one of the two most experienced people in this area, along with David Anderson, the current reviewer. I think that we agreed with that and we favoured the Government just facing up to reality—that there would be what added up to a merits review, and not just emphasising proportionality, legality and the other criteria of judicial review.
Reference to the ECHR is important because Article 6—this also relates to the role of the judges in scrutinising ETPIMs—requires a right to a fair hearing. Satisfying that right has been the problem with control orders and with TPIMs and will be a problem again with ETPIMs, if one accepts that a right to a fair hearing requires that the individual has some knowledge of the case against him or her. Of course, this is not just a matter of the ECHR; it is a matter of common-law principles to do with a fair trial and fair process.
Both TPIMs and ETPIMs rely on the closed material procedure. In the AF case in 2009, it was argued in judgment that a person subject to a control order must be given sufficient information about the allegations against him or her so that effective instruction can be given by that person to their lawyers. The controlee must be given the gist of the case against him for the regime to be Article 6-compliant. That was a judgment in the UK courts. It is a big defect that the Bill does not require the Secretary of State to furnish such a gist as a right but that she will consider doing so only if requested by the court. That puts the Secretary of State between a rock and a hard place. She will have either to supply the gist if ordered to do so by a court or to drop the action, as happened once or twice under control orders.
Therefore, there is a question about the legality of the ETPIMs order itself, never mind prosecution: whether the person does or does not have the gist of the case against him or her provided by the Secretary of State. The Bill is clear that there is no right on the part of the controlee to receive such a gist. The Joint Committee believes strongly that the Government should be prepared to let the controlee have knowledge of the gist of the case against him or her and that that would provide for making the Bill not only Article 6-compliant but also compatible with common law—particularly, English common-law doctrines.
There remains the question of what happens when the ETPIM order has expired. It expires after two years unless the Secretary of State determines that the person has been engaged in new terrorist activities and imposes a new ETPIM regime based on the balance of probabilities. If there is still suspicion about the person being engaged in terrorist activities but not such that can satisfy the requirements of the balance of probabilities, someone is let off the ETPIM regime. What happens next? The Bill is more or less silent about this. The assumption has to be that the controlee will be kept under surveillance by the security services. It would certainly be useful to know from the Minister how public protection will be ensured after the expiration of an ETPIM order—a problem that did not arise under the control order regime, which could be continued subject to periodic review and so forth.
Two further points have become more salient recently. One issue explored by the committee was whether the security situation necessitating the introduction of an ETPIM Bill could be made worse by public sector cuts and a reduction in funds to the police and MI5. This issue was touched on by DAC Osborne. The security situation can be changed by an increased threat both because more people are engaged in this sort of activity and because the police and security services lack the resources to monitor the individuals concerned. The Minister, Mr Brokenshire, rejected this view in his evidence. However, the Times suggested today on its front page that the heads of MI5 and MI6 had made representations to the Government prior to the spending review suggesting that further budget reductions put security at risk. If they do, it might have an effect on whether an ETPIM Bill is introduced. The security threat would have increased not because there were more people engaged in terrorism but because fewer people were engaged in monitoring it. That is an important issue, which was crystallised by the Times today.
Secondly, I would like to know how the requirements of ETPIM orders will be implemented and compliance monitored. Will it be done by the police or by private security companies? We are dealing with people who, on the balance of probabilities and according to an objective threshold of judgment, are regarded as being among the most dangerous people in the country. If their compliance with an ETPIM regime is to be monitored by a private company such as G4S, what confidence does the Minister have that such firms will be up to the job after the debacle over the Olympics? This is very important. We need to know, if not in detail, how the Government see the implementation of this working.
My final point is about prosecution. Paragraph 15 of the Government’s response to the Joint Committee’s report states that the Crown Prosecution Service, in consultation with the police, will decide whether to bring a prosecution. I am not at all sure how this rather bald statement is compatible with the role of government in determining the public interest. Surely it cannot be the case that the police and the CPS will be able to authorise prosecution, with the disclosures that such a prosecution would bring, without getting guidance from the Government about what is in the national interest. If the Government have to have a view about whether a prosecution should be proceeded with, it cannot be the case that only the CPS and the police should decide on a prosecution. I would like some clarification over that. It was certainly the case under the control order regime that the Government abandoned one or two prosecutions because they regarded the disclosures required as being against the public interest. The Government have to make that judgment about the national interest, and, if so, then they are involved in the judgment about whether or not to prosecute. I beg to move.
Baroness Doocey
My Lords, as a member of the Joint Committee that considered the draft ETPIMs Bill, I seek clarification from the Government on three points. The first is emergency legislation. The committee considered the draft Bill in the context of recently enacted TPIMs legislation and accepted it to be a positive move away from control orders. However, I entirely agree with the comments made by the noble Lord, Lord Plant: the progress of TPIMs legislation could have included the option for such powers in the 2011 Act, but instead there was talk of emergency legislation should such a need for extra powers arise. The suggestion of emergency legislation for an ETPIMs Bill strikes me as unacceptable to the principles of parliamentary scrutiny. I urge the Government to think again on this point.
The noble Lord has suggested, and the committee is very much in agreement with this, consolidating TPIMs and ETPIMs legislation without the pressure of time or security threat. By its very nature, emergency legislation requires enactment in a very short time—perhaps just a few days. The committee heard that in such exceptional circumstances the Home Secretary would be severely restricted in what information he or she would be able to share with Parliament. One of our witnesses said that the Home Secretary would almost be in a position of saying:
“‘Trust me, or don’t trust me, if you dare’”.
It is essential that a credible process of briefing and scrutiny takes place in the event that ETPIMs legislation is brought forward. It is our duty to scrutinise; it would not do to reply on trust or indeed to offer private briefings to select Members. The formal government response to our report acknowledges that one way to achieve this would be to brief the Intelligence and Security Committee and for it to report to Parliament. Such a structured approach is far preferable to the informal “trust me” option.
My second area of concern is the definition of “exceptional circumstances”. I encourage the Government to be clearer about the rare and exceptional nature of the circumstances that might require the additional powers covered by the draft ETPIMs Bill. There was consensus on the committee that such circumstances were at the rarer end of the spectrum of seriousness, but we heard a call for ETPIMs to be enacted ahead of the 2012 Olympic Games. This was sensibly rejected, but it indicates to me that more clarity is needed.
The Government’s response was that exceptional circumstances were those in which a serious terrorist threat required the additional ETPIMs powers. However, such a definition sheds little light beyond the dictionary meaning of the word “exceptional”. I ask the Minister to reflect on this because our discussions today may well be examined in years to come to see what we intended. The Government must be clearer on this matter.
I welcome, as did the committee, the assurance from the Government that they will establish a formal review group for any ETPIMs orders mirroring those operated for existing TPIMs orders. This would be an important safeguard to ensure that each ETPIMs order goes no further than absolutely necessary in its demands on the person involved.
My third concern is about judicial process. We are all agreed that where possible we must always prosecute those involved in terrorism. A fair and open trial must be the ultimate aim in all cases. To introduce administrative orders restricting liberty stretches the principle of justice that we hold dear. That is why it is right that, unlike control orders, TPIMs and ETPIMs are time-limited measures. However, such time limits mean that we must be ready to answer the question: what happens when the time is up? The Government must take real steps to develop TPIMs exit strategies based around deradicalisation and judicial processes. I recognise that the use of intercept evidence in court will not, in itself, remove the need for TPIMs or ETPIMs, but it may help in later judicial processes. That means that the Government must continue to examine ways to make intercept evidence admissible in our courts, as it is elsewhere in the world.
The Joint Committee was clear that exit strategies from TPIMs and possible ETPIMs must be developed in every case. From my reading of the Government’s response, this is a recommendation that has been accepted. However, will the Minister confirm that clear exit strategies are currently in place for each TPIMs order? What is proposed for those higher-risk cases where neither prosecution nor deportation is considered possible? I look forward to the Minister’s response but I retain the hope that the circumstances requiring the introduction of ETPIMs legislation will not come about.
Lord Rosser
My Lords, I add my thanks to the Joint Committee for its report on the draft Enhanced Terrorism Prevention and Investigation Measures Bill and express my thanks for the comprehensive and informative speech introducing the report from my noble friend Lord Plant of Highfield.
In a nutshell, the coalition Government decided that they did not like the control orders introduced in the interests of national security by the Prevention of Terrorism Act 2005. They therefore brought in the Terrorism Prevention and Investigation Measures Act 2011, which replaced control orders with something that was very similar in many respects, namely TPIMs or “control orders-lite”, but which had the key advantage from the Government’s point of view of having a different name.
However, the Government had to recognise that no longer having the full powers under the control orders, as provided for in the Prevention of Terrorism Act 2005, represented a potential threat to national security. As has been said, they were not prepared to address this reality in the original TPIMs Act because politically that would have weakened even further their argument that control orders should cease to exist. Instead they have prepared a separate Bill, the Enhanced Terrorism Prevention and Investigation Measures Bill, which has been the subject of consideration by the Joint Committee, and which the Government would seek to pass through Parliament as emergency legislation providing for additional restrictive measures in an ETPIM if they deemed that the circumstances demanded it.
The Minister will no doubt claim that ETPIMs are not the same as the control orders under the Prevention of Terrorism Act 2005, but frankly there is not a lot of difference. The words of the ACPO representative in giving evidence to the committee have already been quoted but he told the committee that, with ETPIMs,
“essentially we go back to the old control order regime ... the old regime was bedded in, and it worked very well”.
Those were apparently his words.
The Joint Committee gave its firm view on the Government’s approach to the draft Bill when it said:
“We can find no compelling reason for the decision to introduce these measures as a separate Bill at some unspecified time in unspecified circumstances. We find it odd that these measures were not included as an order-making power in the original TPIMs Bill where they could be subjected to fuller scrutiny in the course of normal Parliamentary business … The Government’s position that it will introduce this legislation at some future date in response to some unspecified emergency is an unfortunate and unwelcome decision”.
That issue has already been raised with the Minister, particularly by the noble Baroness, Lady Doocey.
In their response to the Joint Committee report, the Government have replied to the Joint Committee’s proposal for briefing a select group of properly vetted Members on the reasons for introducing this emergency legislation if the Government decided that had become necessary. Can the Minister say whether there has been any firming up of the Government’s position on that point, as set out in paragraph 5 of their response to the Joint Committee report?
The Joint Committee report states that in November last year there were nine people subject to TPIMs. It also quotes the Association of Chief Police Officers representative as telling the Joint Committee that,
“given the resource currently available”,
and the changes made to policing, the police,
“are adequately managing the risk posed by people subject to TPIMs at the moment”.
That is hardly a ringing endorsement of how things are working, bearing in mind that we are talking about people—the subjects of TPIMs—who are a threat to national security. The use of the phrase,
“given the resource currently available”,
suggests that ACPO thinks the resource currently available to undertake the job in the way it feels appropriate and needed is not all it might be. That is followed by the phrase,
“adequately managing the risk posed by people subject to TPIMs at the moment”.
In a Government who feel that schools deemed “satisfactory” by inspectors are not doing as well as they should, one must ask the Minister whether the Government feel that adequately managing the risk is good enough when national security is at stake? Why did the ACPO representative not feel able to say that they were either properly or fully managing the risk? Indeed, why did he not simply say they were managing the risk, without the less than enthusiastic addition of the word “adequately”?
As I understand it, an individual subject to a TPIM absconded at Christmas, allegedly in a black cab, and has not been caught. If that is broadly accurate, and the Minister may tell me otherwise, was that individual under surveillance, and was what happened an example of what is meant by “adequately” managing the risk? Until control orders were replaced by TPIMs, the individual in question had been the subject of a control order, and had been relocated outside London. Under the TPIM, the person was free to move to London, and it now appears he has absconded.
Would the noble Lord also say something about the cost of TPIMs? Is it true that a TPIM costs many times more than a control order to enforce? Is up to £18 million per annum per TPIM, a figure mentioned by the noble Lord, Lord Carlile, in his evidence to the committee, anywhere near the mark? If that figure is anywhere near the mark, has it been provided to the Metropolitan Police and does the money appear in their budget?
Enhanced terrorism prevention and investigation measures as provided for in this draft Bill are, as has been said, distinct from TPIMs, with the conditions the Government can impose being more stringent than under a TPIM. The independent reviewer of terrorism legislation said that “in most respects” the ETPIM Bill appeared to,
“replicate what was possible and generally imposed under control orders”.
It is intended that ETPIMs are introduced only in exceptional circumstances. It is clear from their response to the report that clarity on what is meant by “exceptional circumstances”—I think that was a point made by the noble Baroness, Lady Doocey, although she would not have used my words—will not be forthcoming from the Government. However, will the Minister say whether, under the draft Bill and in exceptional circumstances, an ETPIM could be deemed necessary if, at the end of the maximum period of two years for which a TPIM could be enforced, an individual covered by that TPIM was still regarded as a serious threat to national security? In those circumstances, could an ETPIM be imposed under the legislation being taken through Parliament? Would that be deemed “exceptional circumstances”?
I think that I am also right in saying that at least some, if not all, of those covered by TPIMs will cease to be so covered at the beginning of next year because the maximum period for which an individual can be subject to the terms of a TPIM, namely two years, will have come to an end for some, if not all, of those currently covered. What do the Government intend to do when the TPIMs in respect of those individuals cease by law to have effect. Presumably, if the Government no longer considered them a threat, the TPIMs would no longer be effective, so the fact that the TPIMs are still effective suggests that the Government still consider these individuals to be a threat to national security.
Are the Government saying that, by a happy coincidence, these individuals will cease to be a threat to national security on precisely the same day the TPIM ceases by law to have effect? If not, what do the Government intend to do? The Government must have made up their mind what action they would take, or what the options would be when the TPIM expired, when they made the decision that TPIMs in respect of an individual could not be effective for more than two years. If the Government are not prepared to answer that question today, when will they give an answer?
Coming back to what the Government mean when they say that an ETPIM would be introduced only in exceptional circumstances, the government Minister who gave evidence to the Joint Committee identified “multiple attacks” or a “really exceptional incident” as possible triggers for the ETPIMs Bill to be introduced. If that is the case, does it mean that an incident actually has to have occurred, with possible injuries or loss of life, before the emergency Bill would be introduced? Could the ETPIMs Bill be introduced in respect of an individual where there was activity which suggested an incident might be about to be perpetrated, or will we have to wait either until we are sure an incident is about to be perpetrated, or wait for someone to be quite possibly killed or injured in an incident before it was deemed that there were “exceptional circumstances” which justified the Bill being introduced? Apparently the independent reviewer of terrorism legislation told the Joint Committee that there would be no question of imposing an ETPIM on anybody unless the Home Secretary were persuaded that they,
“have been involved in terrorism”,
which could be interpreted as shutting the gate only after the horse has bolted. It would be helpful if the Minister could clarify this point and also how, if there are emergency “exceptional circumstances”, there will always be time to go through even a truncated parliamentary process—assuming Parliament was sitting—without putting national security at risk.
Clause 2 of the draft Bill sets out the conditions on which the Secretary of State must satisfy herself before imposing an ETPIM. One of those conditions is that the individual is, or has been, involved in terrorism-related activity, and that some or all of this activity is “new”. The definition of “new” is addressed in the Joint Committee’s report, but it would be helpful if the Minister could give us some examples from a government perspective of what would or would not constitute “new” terrorism-related activity in relation to the conditions on which the Secretary of State must be satisfied before imposing an ETPIM. It could presumably be the ETPIM itself and the conditions attached to it that were preventing the individual concerned from embarking on “new” terrorist-related activity. Could the reference to “new” activity mean that the ETPIM could not be extended or renewed because there was no evidence of new activity even though the reason there was no “new” activity was the existence and conditions already attached to the ETPIM? Perhaps the Minister could respond to this point, and the following comment in the Joint Committee report:
“As such, it is possible that under this legislation, at the end of a maximum two-year period, an allegedly dangerous, radicalised individual will be released without direct restrictions on their behaviour”.
What is the Government’s response to this point in view of the fact that it directly relates to national security?
The Government’s written response to the Joint Committee report did not do justice to all the serious points raised, and questions asked, in the report. My noble friend Lord Plant of Highfield and the noble Baroness, Lady Doocey, have raised a number of points and questions today, as have I. I hope that all these questions will receive a considered and thoughtful response from the Minister, since the House has a duty to challenge, question and hold to account the Government, in particular on matters that impact on national security.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I will conclude this interesting if intimate debate by thanking the noble Lord, Lord Plant, for introducing it. The way in which he did so informed the Committee of the background in a very thorough fashion. In some ways, that makes it easier for me to demonstrate the Government’s thinking on this issue. I thank all noble Lords, and all honourable Members, who participated in the Joint Committee, in particular the noble Lord, Lord Plant, and my noble friend Lady Doocey. Despite what the noble Lord, Lord Rosser, said, the Government take the scrutiny of this committee extremely seriously.
As the noble Lord, Lord Plant, described, an enhanced TPIM Bill would be introduced only in exceptional circumstances that necessitate the use of more restrictive powers than those normally available in the TPIM Act 2011. The noble Lord, Lord Rosser, rather pushed me to go into more detail about what those exceptional circumstances might be. I do not think that I can genuinely do that. However, the Government will never put national security at risk. Protecting the British public will always be our top priority, and prosecution and conviction will always be the best option for dealing with terrorists.
As the noble Lord, Lord Plant, said, TPIMs were introduced following the counterterrorism powers review. They provide a better balance than control orders between controlling people who are engaged in terrorism-related activity and ensuring that if they re-engage in that activity we can collect evidence that can lead to their conviction. TPIMs assist the police and the Security Service by providing effective powers to manage the risk posed by a small number of terror suspects who pose a threat to our security but who cannot be prosecuted or, in the case of foreign nationals, deported.
TPIMs allow the Home Secretary to impose a powerful range of measures to protect the public. We have also provided substantial extra resources for the police and Security Service to help them manage the risk that such individuals pose, and to maximise the opportunities to put them on trial in open court. TPIM powers give the police and the Security Service a range of powers that, along with additional resources, will be adequate to protect the public from terrorism in all but exceptional circumstances. We made clear when legislating for TPIMs that in future exceptional circumstances may necessitate the use of more restrictive measures. This would be in the event of a very serious terrorism-related risk that the Home Secretary, on the advice of the Security Service, judges cannot be managed by any other means. We maintain that these more stringent measures should be available only in exceptional circumstances.
The example of the Olympics was raised in this debate by my noble friend Lady Doocey. That we did not introduce these powers speculatively in advance of a significant event shows our commitment to do so only in response to specific circumstances that warrant them being on the statute book. As noble Lords will know, we were commended by David Anderson, the Independent Reviewer of Terrorism Legislation, on the restraint shown in the run-up to the Games.
The Government agree that it is right that this legislation receives proper parliamentary scrutiny. That is why we published the draft ETPIM Bill over 18 months ago, in September 2011. We did this so that it was clear what enhanced measures would be introduced and to enable the draft Bill to receive the detailed scrutiny of both Houses through pre-legislative scrutiny. I welcome this opportunity further to debate the draft Bill today, and am grateful that the noble Lord, Lord Plant, has tabled this debate.
In his introduction, the noble Lord carefully analysed the Government’s position and whether ETPIM powers should be in the 2011 Act, and my noble friend Lady Doocey shared his concern. Perhaps I can clarify. We consider that these powers will not be routinely needed, and that the 2011 Act will provide robust powers to protect the public in almost all circumstances. We consider that the enhanced powers should be introduced only if they are needed, and should be specifically agreed by Parliament. Our view is that they should not be routinely available on the statute book. That is why we have prepared, but do not intend to introduce until needed, the ETPIM Bill. If we introduced that Bill, we would consider whether to incorporate the enhanced powers into the TPIM Act when the renewal of that Act comes before Parliament at its five-year renewal point, taking into account the circumstances at that time.
Should this legislation ever need to be introduced, the Government will seek to brief Members appropriately. This will need to be done in the context of the as yet unknown circumstances in which it would be introduced, which may well mean that only a limited number of suitably cleared people could be briefed. It would be for both Houses to decide whether those circumstances were exceptional enough to justify the introduction of these enhanced powers.
I say to the noble Lord, Lord Rosser, that the Home Secretary has discussed with the ISC its potential role in an emergency legislation situation and the need to assure the House. The exact most appropriate mechanism to assist Parliament will depend on the precise circumstances involved, but noble Lords will know that we have recently debated a Bill that sets out the role of the ISC clearly as a committee of Parliament.
As I have said before, I do not think that it is appropriate to prescribe the circumstances in which the Home Secretary would seek to introduce the ETPIM regime. This is draft emergency legislation to deal with a potential threat that is, by its very nature, unknown. It would be difficult and unwise to attempt an exhaustive hypothetical definition. However, situations in which the draft enhanced TPIM Bill might be introduced are if there was credible reporting pointing to a series of concurrent attack plots, all of which appeared imminent, or in the wake of a major terrorist attack where there was a potential prospect that there may be further attacks. I say to the noble Lord, Lord Rosser, that an individual may pose a particular threat to national security such that it is necessary to introduce the ETPIM Bill.
The enhanced TPIM Bill makes available a range of more stringent powers that are not available under TPIMs. These include relocation to another part of the UK without consent; the requirement to be in a named residence for up to 16 hours; geographical boundaries beyond which they may travel only with permission; a total ban on access to communications equipment such as computers and mobile phones; and further restrictions on association. The noble Lord, Lord Plant, went into those in his introductory remarks. As the noble Lord identified, there are clear differences between control orders and ETPIMs, and I thank him for setting them out so clearly. They include the higher legal test, the limit on restrictions that can be imposed and the two-year limit.
The noble Lord asked how ETPIM notices would be enforced, and specifically what confidence I would have in a private contractor performing this role. Of course we hope that the ETPIM Bill never comes into force, but if we had to impose an ETPIM notice, enforcement, as with TPIMs, would be a matter for the police, and I am confident that they would not take a step that put public safety at risk. They would make a judgment that conformed to the seriousness of the situation and the national security risk involved.
The ETPIM Bill also includes some important safeguards. First, the enhanced powers will be available only if Parliament believes that they are necessary. The enhanced measures will also be subject to a higher legal test, as I said, in order to impose them. The Secretary of State must be satisfied that the person is or has been involved in terrorism-related activity on the balance of probabilities. That is a higher threshold than “reasonable belief”, which is the test for a standard TPIM notice. I reassure the noble Lord, Lord Rosser that the ETPIM Bill is clear that new terrorist-related activity is that which has been committed after the imposition of an ETPIM notice. That is quite clear in the draft Bill.
The Government agree with my noble friend Lady Doocey that it is important to develop a clear exit strategy for each TPIM subject. Noble Lords will appreciate that I cannot go into detail on this work, but I confirm that there is a multiagency approach to ensure that all options are considered. We continue to believe that prosecution and conviction is the best approach to combat the risk of terrorism, and that the best place for a terrorist is in a prison cell. In addition, the police and Crown Prosecution Service continue to keep under review whether a successful prosecution could be brought against those subject to a TPIM notice. We will also continue to keep under review whether further tools are required to enable the prosecution of terrorists.
I say to the noble Lord, Lord Plant, that the Government maintain the fully independent Crown Prosecution Service to apply the public interest test. It is a two-stage test, as it is in all prosecutions: first, that there is a realistic prospect of conviction based on the evidence available; and, secondly, that it is in the public interest to prosecute. To apply this test, it considers the evidence that can be put forward in an individual case, including where there may be any national security concerns. This is why the Government are conducting an extensive and detailed review to assess the benefits, costs and risks of introducing intercept as evidence. This work continues under the guidance of the cross-party group of privy counsellors and will report in due course. The former and current independent reviewers of counterterrorism legislation and my noble friend Lady Doocey have said that IAE would not remove the need for TPIMs.
Lord Rosser
If the Minister is about to close, is he able to address the question that I asked about what happens to those who are on TPIMs at present? I understand that at least some, if not all, TPIMs will come to an end at the beginning of next year. What is going to happen to them? I asked whether, if those people were still considered a threat to national security, the Government could seek an ETPIM in respect of them or whether they would fail to meet the criteria if they had not committed any “new” terrorist activity. I also asked whether, if someone is subject to an ETPIM, the Government envisage renewing it or extending it in any form because presumably, under their own definition, they could do so only if the individual had committed some “new” terrorist activity while under the EPTIM which, if the EPTIM was being effective, the individual would not have done.
Lord Taylor of Holbeach
I think that I can answer the noble Lord best by saying that all cases are reviewed properly. I gave a description in response to my noble friend Lady Doocey’s question about the disengagement of subjects from a TPIM order. The future conduct of individuals who have been subject to a TPIM or an ETPIM will be subject to review regarding the nature of the threat that they present to national security. That is how this legislation works in relation to the individuals who are subject to it.
I was going on to say, about the introduction of this draft Bill and the exceptional circumstances that might lead to its presentation to Parliament, that I am sure noble Lords will say that they hope that such circumstances never arise, that this diligent work conducted by noble Lords may not be necessary and that we do not face the exceptional circumstances that would mean that the Government were forced to present the Bill to Parliament. I thank noble Lords.
Lord Plant of Highfield
My Lords, I will not detain colleagues for more than a minute or two, but there are one or two issues that I would like to leave in colleagues’ minds. I was grateful for the Minister’s speech. However, perhaps it is my suspicious mind but I thought that his response on private security firms was possibly a little oversubtle. I do not know whether he meant that it would still be down to each police force that was responsible for an ETPIMs controlee to decide for themselves, in the light of the national security position, whether or not they should contract out the supervision and the way of imposing the ETPIM order on an individual. Is there any prohibition on that, or is it up to each police service?
Lord Taylor of Holbeach
I think that I made it clear that it is up to the police to make that judgment and that they would do so on the grounds of national security. There may of course be some elements of the TPIM that might well be most effectively done by a contractor and not a police force, but that is up to the police to decide. It is not for us to discuss in detail here because I do not think that that is particularly appropriate. The police are charged with implementing these orders, and they will do so in the most effective way. That is how the police carry out their duties.
Lord Plant of Highfield
I thank the noble Lord for that clarification. I am not sure that I am entirely reassured, but at least I now know exactly what he meant.
The Minister spoke eloquently and correctly about the role of the CPS and the police in deciding whether or not to prosecute. The response of the Government is:
“It is for the Crown Prosecution Service, in consultation with the police, to decide whether to bring a prosecution, not the Government”.
I am sure that that is constitutionally right. I am just a bit worried, though; certainly, evidence that was given to us said fairly baldly that the previous Government had abandoned two prosecutions because of the way in which the disclosure of information would affect national security. According to the evidence—and it may be wrong; I do not know—the Government had made that decision, rather than the CPS or the police acting on their own. If that is right, it is not the case, as stated in the Government’s response, that:
“It is for the Crown Prosecution Service, in consultation with the police, to decide whether to bring a prosecution, not the Government”.
We will just leave that hanging in the air unless the Minister has further information.
Lord Taylor of Holbeach
All I can say is that it is obviously for the Government to decide whether it would be in the public interest to present that evidence within a prosecution. That could influence the decision of the Crown Prosecution Service on whether or not to pursue a prosecution. As noble Lords will know, we have recently passed some legislation that has perhaps made this decision slightly easier for the Government.
Lord Plant of Highfield
I thank the noble Lord for that, because I thought that it was a rather bald statement and I just did not think that it could be true concerning the role of the Government in abrogating a judgment about what disclosures were in the national interest to the CPS and/or the police. I am grateful for that clarification.
I am slightly bothered about the scrutiny of the Bill. We have come to the end of our time and effort today, but we have not really discussed, except in procedural terms, the extent to which the ETPIMs regime will provide an incentive for prosecution. Given that they last for only two years, you might say that there is an incentive; on the other hand, though, as my noble friend Lord Rosser said, other things within the ETPIMs may militate against the capacity to bring a prosecution. Anyway, we have not dealt with that this afternoon but we have had a good discussion. No doubt at some point we will return to many of these issues. I thank noble Lords for contributing and the Minister for his response.
Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013
(11 years, 7 months ago)
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Earl Attlee
That the Grand Committee do report to the House that it has considered the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013.
Relevant document: 22nd Report from the Joint Committee on Statutory Instruments
Earl Attlee
My Lords, I shall provide the Committee with a brief summary of what the order is intended to achieve. The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of any provision made by or under any Act of the Scottish Parliament. This order is made in consequence of the Children’s Hearings (Scotland) Act 2011, which I shall refer to as the 2011 Act. The 2011 Act aims to improve support for both professionals and panel members to ensure consistency of approach and practice, with a view to achieving better outcomes for children and young people involved in Scotland’s children’s hearings system. The 2011 Act will provide for legal and procedural changes to ensure that children’s rights continue to be properly upheld, while also bringing the majority of existing law relating to children’s hearings into a single statute.
The 2011 Act largely restates and updates the law relating to children’s hearings in Scotland. The order will ensure that existing legislation in England and Wales, as well as reserved UK legislation, is updated to reflect those changes. The order also makes cross-border provision to ensure that certain aspects of the children’s hearings system—for example, the placing of children in a particular place—apply to other parts of the UK. The modifications made by the order are largely of a technical nature and will ensure that the existing law continues to operate effectively by recognising the modifications made by the 2011 Act and subordinate legislation made under it.
The order demonstrates the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that the order is an appropriate use of the powers in the Scotland Act 1998 and that the practical result is something to be welcomed. I commend the order to the Committee and I beg to move.
The Earl of Mar and Kellie
My Lords, my intervention will be largely based on reminiscence. In 1968, when the children’s hearings were set up as part of the Social Work (Scotland) Act, I was a diploma in social work student in Edinburgh and I recall the senior civil servant in charge of the Bill coming to speak to us. I suppose that I have spent the subsequent 45 years watching the development of the children’s panel system, which is characterised by being much admired but hardly ever replicated. I certainly believe that the welfare approach is the right approach and that the children’s hearings are more likely to find a suitable conclusion to, or development of, the person’s situation. I think that we in Scotland were right to abandon the juvenile court approach that was extant before 1968.
I fully concur with my noble friend that this legislation is the inevitable result of devolved legislation. It would be entirely wrong for this Parliament not to pass this legislation. Families clearly have the opportunity to go and live wherever they wish. Indeed, sometimes things go wrong when people are on holiday in Scotland. This order certainly has my support; it comes from a good, and unfortunately a rare, example of this Parliament legislating uniquely for Scotland. That was very good and it does not happen very often. It was certainly a Government who had popular support in Scotland, and it will be interesting to see what the future holds in this respect. I certainly give this order a very fair wind.
Lord McAvoy
My Lords, I totally agree that this is a consequence of the devolution brought about by the Labour Government and that these are natural extensions of it. Before I make my few remarks, I thank the Minister for the helpful communication that he sent me and the offer of assistance. It was much appreciated and I respect him and his staff for that.
There are a few things. It may be that I am nitpicking— I hope not—but my interest was aroused by looking at paragraphs of the order and thinking about how they will be practically implemented. Paragraph 4.9 of the Explanatory Memorandum says:
“A children’s hearing or a sheriff may consider that it is in the best interests of a child to stay with a particular person. If that child then absconds from the particular person, for whatever reason, to a place in England, Wales or Northern Ireland, article 9 of this Order allows a constable in any of those jurisdictions to arrest the child without a warrant and take them back to the person”.
I wonder if there are any practical examples, without names of course, where that has happened. What is the justification? That is quite a lot of power being invested in a police officer, and I wonder what the track record is of any of these things happening. In addition, it seems quite a strong measure and I wonder whether there is any authority in existence that reviews a case. Is it kept within the police or within the social work department? Because everyone should be accountable, it certainly might be interesting or useful to see whether there is any review of any cases like that which throw up any problems with it.
I move on to paragraph 4.10, on offences related to absconding. It says:
“A children’s hearing or a sheriff may consider it to be in the best interests of a child to require them to be kept in a particular place or with a particular person”.
Does a child have any representation at that hearing? Who represents the interests of the child? If there is anything that a child is concerned about or is affecting them but is not known to the authorities, what sort of representation does a child get from the care system in that situation?
Moving on to paragraph 4.12:
“This Order prohibits the publication of certain information about proceedings at a children’s hearing or court proceedings under the 2011 Act if it is intended that publication will, or is likely to, identify the child, the child’s address, or the school which the child attends”.
Can we get some clarification of the word “publication”? Recent events show how something can go “viral” on the internet. Would the publication of a child’s name on the internet be a breach of this? Has that been envisaged, or was this framed and implemented at a time when there was no such thing as the internet? It would be interesting to see whether internet abuse would be covered by this and whether action could be taken, no matter how difficult it can be.
Paragraph 4.13 is entitled:
“Transfer of children from Scotland to England, Wales and Northern Ireland: Effect of compulsory supervision order”.
Quite rightly, throughout the order there is reference to the four home countries. Is there any joint body or liaison on this between the countries, or between any two countries involved in a particular case or incident? We all know how bureaucracy can be, and if there is no scrutiny and transparency things can go wrong. Again, paragraph 4.19, which is entitled:
“Child placed in secure accommodation: decision of the head of unit”,
says:
“Under the 2011 Act, a children’s hearing may, in conjunction with a relevant order or warrant, make a secure accommodation authorisation (SAA) which could specify that the child resides at a residential establishment in England, Wales or Northern Ireland. Under the 2011 Act, the Chief Social Officer (CSWO) must then make a decision as to whether or not to implement the SAA”.
Again, that seems like an awful lot of authority and responsibility to be given to one person. Are there any methods of scrutinising such decisions, or are they reviewed by the chief social worker? I ask this because—and I am not attacking social workers—no one is perfect, and it is all about scrutiny and accountability.
I have raised a number of questions, and the Minister may not be able to answer them. I find no reasons to doubt the order—in fact I support it—but I would like some clarification on these issues concerning transparency, scrutiny and accountability, bearing in mind we are dealing with children, who are not always able to represent themselves properly.
Earl Attlee
My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, for his kind words of support. The noble Earl of course has much experience of working with children and young people. I am also grateful for the support from the noble Lord, Lord McAvoy. If I do not answer any specific questions of his, I will of course write, when appropriate. He asked first about the review of cases and the viewpoint of the child. I am not aware of any problems, but of course I will write if I have any useful information. Many of these matters are of course the responsibility of the Scottish Government, but I am content to pursue the points raised by the noble Lord with the Scottish Government and write to him.
He asked an interesting question about publishing restrictions that were felt to be necessary in the age of social networking systems. The restriction is primarily aimed at journalists, to prevent them from publishing information that could identify a vulnerable child. With regard to social media, if the principal reporter is made aware that a sibling has posted something on a Facebook or Twitter page about the whereabouts of their brother or sister, the police have been known to visit them and ask them to remove the post. This is generally complied with as they have not understood the consequences of that post. The Scottish Government do not expect any changes to be brought forward in these types of situations.
It might be helpful to the Committee if I gave a real-world example of the effect of the order. Suppose that a 15 year-old child is subject to a compulsory supervision order with a condition that he reside at home with his mother in the Scottish borders. The CSO also contains a direction regulating supervised contact once a week with his father. His father is estranged from the mother and resides in Newcastle. The father therefore travels once a week to a social services centre in the Scottish borders for supervised contact with his son.
One day the child is persuaded by his father to travel across the border and stay with him in Newcastle. The child tells his mother that he is off to play football with his friends the following Saturday morning, but instead travels to Newcastle. When the child does not return home as expected, the mother contacts his friends and learns that he has gone to see his father. She contacts social services and the police, who arrange to visit the father. The father denies that the child is with him and conceals the child from police and social services in England.
In this instance, the father would be guilty of an offence under Section 171 of the 2011 Act if he lived in Scotland, but without a Section 104 order—the one that we are debating today—he would not be guilty of the same offence in England. We therefore need the Section 104 order to protect Scottish children across the UK. I am grateful for the support of the Committee and I beg to move.
Suicide
(11 years, 7 months ago)
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Baroness Buscombe
To ask Her Majesty’s Government what support they are providing to community groups, voluntary organisations, charities and faith groups that support people at risk of suicide.
Baroness Buscombe
My Lords, I thank all noble Lords who are contributing to this short debate. It is a tough subject and deserves our attention and support. I begin by paying tribute to the work of the Samaritans which is, this year, celebrating 60 years of amazing support for people from all walks of life who are trying to cope through a critical period in their lives.
I am privileged to be chairman of the Samaritans Advisory Board and have learnt at first hand so much of the extraordinary achievements all began with one man, Chad Varah, and one phone in one room in a church in the City of London. Chad Varah recognised that suicide is not inevitable, and the ability for someone to be able to share their thoughts with another, on a confidential basis, through the power of communication, could prevent unnecessary deaths.
Since that time 60 years ago, when this was a totally taboo subject, more than 127,000 volunteers have answered over 115 million calls for help—that is, twice the population of the United Kingdom—all without one penny of taxpayer subsidy but through charitable giving.
Samaritans volunteers are ordinary people providing callers with a safe place to talk, without judgment. Today 20,665 volunteers answer 5 million calls across the UK 24 hours a day, seven days a week. That means a contact every six seconds by phone, text, e-mail and letter and face to face.
Confidentiality and anonymity are hallmarks of the charity. I now realise that I have some wonderful friends whom I have known for years without knowing that they are Samaritans. I pay tribute to them all.
Even with the support of Samaritans, more than 6,500 lives are lost each year across the UK to suicide, and it is on the increase—by over 8% in the past year alone. Totally indiscriminate, suicide can affect anyone, no matter what their age, gender or background. Last year Samaritans answered more than 650,000 calls for help from people experiencing suicidal feelings. For every suicide, approximately 20 attempts are made. In 2011, more than 130,000 suicide attempts were made. One little-known fact is that men are three times more likely to die by suicide than women. Men in their 30s to 50s in lower socioeconomic groups are at the highest risk, and we do not know enough about why this group is so vulnerable to suicide.
What, in addition to the wonderful support of Samaritans and other related charities, such as Combat Stress, can be done?
The Deputy Chairman of Committees (Lord Bates)
A Division having been called, the Committee stands adjourned for 10 minutes.
Baroness Buscombe
So, my Lords, what can be done in addition to the wonderful support of the Samaritans and other related charities, such as Combat Stress? Technology is key to recognising that young people, in particular, no longer use a phone in the conventional way. They text and use social media to communicate and share their thoughts. Partnerships between organisations affected by incidents of suicide are critical. An example of this is a five-year partnership between the Samaritans and Network Rail, who are working together to confront suicide with some considerable success. In addition, there is a strong role for government. The new suicide prevention strategy, Preventing Suicide in England, published by the Department of Health in September 2012, is very welcome. This important development in government thinking recognises that any strategy to tackle suicide must be cross-government and needs the support of the voluntary and statutory sectors, academic institutions and schools, businesses, industry, faith groups, journalists and other media.
The link to other social problems, such as family breakdown, unemployment, debt, alcohol and drug misuse and the criminal justice system is so important. In short, we live in a complex society where, too often, people are lonely and feel unable to cope, even when they may have a loving family around them. The strategy makes some critically important statements in its six defined areas of action, which aim to reduce the risk of suicide in key high-risk groups; to tailor approaches to improve mental health in specific groups; to reduce access to the means of suicide; to provide better information and support to those bereaved or affected by suicide; to support the media in delivering sensitive approaches to suicide and suicidal behaviour; and, finally, to support research, data collection and monitoring.
The strategy includes a new area for action, highlighting the importance of providing better support to people who have been bereaved by suicide. Some bereaved families say that hitherto there has been little support available for them to turn to. The strategy is also very clear that, for suicide prevention to be effective, mental and physical health have to be seen as equally important, and we need better mental health for all. That in itself presents an enormous challenge, albeit one that is entirely laudable and should be pursued with rigour.
The immediate challenge is to ensure that the six areas of action are applied in practice and filter through to all parts of the country, both urban and rural, and reach those in need of support. All upper-tier local authorities in England should, I suggest, commit to the development of a local suicide prevention action plan, involving a wide range of statutory agencies and voluntary organisations.
Improvements could also be made in relation to signposting. How do people know where to turn to when they are in shock following the suicide of a family member or friend? Coroners’ officers, GP surgeries and other gatekeepers need to ensure that they are referring people bereaved by suicide to sources of support—for example, making available the Help is at Hand support booklet. In addition, rollout of a new free-to-caller number, allocated by the European Commission and transferred by Ofcom to the Samaritans, is key, albeit additional funding to support this development is needed.
Given that implementation of the strategy is crucial, the All-Party Parliamentary Group on Suicide and Self-Harm Prevention has recently sought to investigate the effectiveness of local suicide prevention plans in England—a relevant question, given both the strategy and the fact that both recent public health and NHS reforms have, as of this month, become fully operational. The all-party group wrote to local authorities and PCTs to establish the extent of suicide prevention activity in each of the 152 county and unitary local authority areas in England, and the response is concerning: 27% of local authority areas do not have a local suicide prevention plan and 46% of local authority areas do not have a multi-agency suicide prevention group.
The all-party group made a number of important, practical recommendations. At national level, these are aimed primarily at the Department of Health, the main thrust being that a stronger set of requirements needs to be imposed by the Government to ensure that the aims and objectives of the strategy are implemented at local level. The necessary steps for implementation at local level include requiring local authorities each to develop a suicide prevention plan led by the director of public health, and those plans should reflect the six areas for action to which I have already referred. Progress needs to be monitored so that there is a clear understanding at national level of where there are gaps in local implementation. Also, a sharing of best practice and other information about suicide prevention work across the country and between the four nations of the UK should be put in place. Therefore, there is a very important role for government and I hope to hear from my noble friend this evening that there is a strong focus upon practical implementation of the strategy.
In addition, awareness among all citizens of this terrible curse upon society must be continually raised and discussed so that more can be done to support those at risk of suicide through all the agencies, coupled with the wonderful support of individuals that exists because of the thousands of volunteers who work tirelessly and with extraordinary compassion so that fewer people die by suicide.
Lord Giddens
My Lords, I congratulate the noble Baroness, Lady Buscombe, on having introduced this debate in such an effective fashion. Suicide is an extremely complex form of action to study and, hence, to develop preventive strategies against. There are two reasons for that. The first is that, by definition, you cannot interview people who have committed suicide—there are very few other examples in social life where this is true. Secondly, in order to be said to commit suicide, you have to have the intention to die. If you step off a kerb accidentally and a car knocks you down, it is not suicide. As most people do not leave notes, intention has to be inferred retrospectively by coroners.
When I studied suicide in the early part of my academic career, we looked at lots of judgments made by coroners. They led me to be deeply suspicious of suicide statistics and therefore of preventive strategies based on those statistics. It is not that suicide statistics are just inaccurate around the edges; in my opinion, they are often probably totally wrong and non-comparable. One thing about the government document on preventing suicide in England is that it is based almost wholly on statistics, and risk is calculated in that way. For example, the noble Baroness cited figures suggesting that three times as many young men commit suicide as other groups. However, I think that that is highly unlikely to be true. I do not have the time to say why, but I think that it is highly unlikely. One must depend upon intensive studies of suicide and not just statistical ones.
One way of studying who has committed suicide is to look at those who attempt suicide in various serious situations. We had an interesting study of people who jumped off the Golden Gate Bridge in San Francisco. If someone jumps off that bridge he is almost certain to die—only about 3% survive. The study interviewed the survivors. It was interesting that on the way down, people were thinking, “I didn’t need to do this”, or, “I could have solved my problems”. What they said was very interesting. It was admittedly a small sample, because most people die, but they all said that it was the Golden Gate or nothing. In other words, the method that you use to commit suicide is very important, especially if you intend to do it seriously—there is a massive difference between most attempted and actual suicides.
Another study of the Golden Gate Bridge covered 515 people who were stopped from jumping. That was also interesting. One might imagine that people who really want to kill themselves will go on until they do it, but that is not so at all. In the study, of the 515 people, 95% were either still alive 25 years later or had died of natural causes. In other words, at least for certain types of suicide, if prevented at source, it does not recur. That has important implications.
In this country, some 20 people on average jump off Beachy Head each year—124 people died there between 1965 and 1979. A medical researcher who studied the details very intensively—this is why I am recommending intensive studies—concluded that 115 of this group were almost certainly suicides. To show the point that I was making earlier, only 58 were recorded as suicides by the coroner. That is a huge difference; it is double the rate. A lot of people who jump off Beachy Head are women, not men. Having read Preventing Suicide in England, a bit more lateral thinking would be in order, in recognising all the great work that the Samaritans do.
In my minute I must ask quickly, first, what is the Government’s policy on popular suicide spots? Are they all left to volunteer groups, such as at Beachy Head, where it is mainly a chaplaincy group that tries to stop people? It is very important to know because probably about 500 people a year die in popular suicide spots, which is about 4% of the total number in the country. That is pretty significant. I do not know whether the Government have a policy on that, but as the Golden Gate study shows, if you stop them, the vast majority do not come back to try again. Secondly, is there an analogue to the Live Through This project in the United States, which is pretty intriguing to me. It is backed by the American Association of Suicidology. Oh dear, I will have to stop, I suppose. It is transformational because it is a website for people who have survived serious suicide attempts. They speak out openly in a variety of media sources and communities. The idea is to strip away stigma and shame, and it is the first time that that has ever been done. There is a major input from people on a large scale who have attempted suicide, and there is a public-private partnership to support it. The main thing is that people who have attempted suicide have been seen as objects not subjects. In this case, they appear as subjects. I had a good third point but have no time to make it.
Lord Roberts of Llandudno
My Lords, I, too, thank the noble Baroness, Lady Buscombe, for giving us this opportunity, and for bringing to our attention, as the noble Lord, Lord Giddens, said, the statistic that three times as many young men between the ages of 30 and 44 commit suicide than women in that age range, or perhaps a wider age range. Does that not somehow reflect the economic situation—jobs and so on? A University of Liverpool study suggested that 1,000 suicides in the general age range were because of the recession. How true that is I do not know, but that is the figure that the University of Liverpool gives us.
In Wales we had a different situation. In 2007, seven youngsters in Bridgend committed suicide, six of them by hanging. In that year, there was a terrible dilemma in Wales: why were these people doing it? They were saying, “It is such a boring place, what else can I do? What other job can I get? I want to get out of here”. The only way they could see to get out of there was by committing suicide.
The great contribution of the Samaritans has already been mentioned, as have Childline, the NSPCC, Chad Varah and Esther Rantzen. All these deserve our thanks for what they have done and the countless lives that they have saved.
The reasons for suicide vary tremendously. As a minister, I encountered it fairly often—not too often but often enough. Why did they try to do this? Sometimes you just shook your head and said, “No idea”. At other times you would say, “Ah yes”—there were problems that we were aware of. According to the statistics, 1 million people commit suicide every year worldwide. Of these, 100,000 are young people, 15 to 19 year-olds. I suggest that there are 100,000 different reasons why they would try to commit suicide—so many different countries, so many different situations.
A new scheme is being brought in in Indiana in July this year. Everyone seeking an initial teaching qualification will have to study education and training in the prevention of child suicide and recognising the danger signs. Somehow, because we are talking to machinery, computers or whatever, we are losing the personal touch—in communities and families.
I have discussed this with ministers of other denominations—the number of priests and ministers in communities and the number of lively, active, alert churches is far fewer than it used to be. When that happens, the community is weakened because there is not the person there to support the most vulnerable. The figures from my own church in Wales are startling: 100 years ago we had 137 Welsh-speaking ministers of our own home-grown variety; today we have two or three. It is a big difference. A Presbyterian minister told me, “In my church at the time of the great Welsh Revival 100 years ago we had 1,000 ministers. We now have 40”. So the people who would be in the community to support and listen are not there in the same way, and the families who would also get their support in the churches are not there.
However, it is not only churches. I have a list here: policemen, village-based teachers, local shop-owners, local football teams, bands and choirs, even well run pubs—and I might well be struck off for praising well run pubs. These are all part of the community and they are not there to the same extent any longer. The local community is the strongest and best friend of those who are most vulnerable. We must somehow give it new strength so that it can fulfil what it used to do in treating and responding to needs.
Baroness Wheatcroft
My Lords, every suicide is a glaring reflection of the fact that our society has failed to look after its most vulnerable. The noble Lord, Lord Roberts, has just explained how he sees failings in the community as partly responsible for that, and I can only agree. I welcome the Government’s decision to produce their new suicide prevention strategy, and congratulate my noble friend Lady Buscombe on securing this debate. At this point, I must declare an interest as a member of the Samaritans advisory board. We are well represented here this afternoon. I am in awe of the remarkable work that the Samaritans do.
The reasons why people decide to take their own lives are varied, although there are some factors that seem to be very regular occurrences, particularly financial ones. When World Suicide Prevention Day took place last year, there was a campaign under the heading “You Can Cope”, but those who kill themselves have generally decided that they cannot cope, or at least that they cannot cope alone. I agree with the noble Lord, Lord Roberts, that they feel alone. This does not necessarily mean that they are single. They may be in relationships, they may be in touch with their family, and they may apparently have a network of friends, but the person who is driven to suicide tends to feel very much alone. A problem shared is said to be a problem halved, but a problem left to grow like a malignant tutor—tumour, although there are a few malignant tutors around—inside the brain and heart of an individual is a problem multiplied. For whatever reasons, and pride may be one of them, too many people today have no one they can share their problems with.
The irony is that in an age when many people have hundreds, indeed, thousands, of what they would term friends on Facebook, there are more and more people who, when they hit the slough of despond, do not have a friend to turn to but welcome being able to turn to a stranger. A friend of mine who spent many years as a Samaritan told me that what was really wanted on the end of the phone was a friend. The main cause that really drove those people to ring was extreme loneliness. She told me that she kept one of her clients going for several days after he called to say that it was the end, there was nothing to eat in the house and he could not cope. She told him the ingredients for cauliflower cheese and sent him out to buy them, and when he came back, she talked him through the recipe. When he said, “But what about the bird? There’s nothing for the bird to eat”, she suggested that the bird should eat cauliflower cheese too. In the end, this guy went away, not happy, but feeling less alone, and over the years he called her again occasionally and they talked recipes.
For those at their wits’ end, the Samaritans enable them to phone a friend. People do that about 5 million times a year. Other charities do fantastic work in helping those who feel suicidal, and the national prevention strategy acknowledges the importance of getting all those organisations to work together and to work in tandem with social services and the National Health Service, but today I shall stress the one way in which these charities can be helped to be more effective; it is by making that life-saving phone call cheaper. The Samaritans’ national helpline number is an 0845 number, which means that landline calls are relatively inexpensive, but calls from mobiles are considerably more. Incredible although it may seem, the Samaritans’ research shows that the cost of that call will put people off making it. The aim is to have a free-to-caller national number. In 2009, Ofcom gave the Samaritans the number 116123, which is pretty easy and memorable. It has been successfully trialled, but to roll that out nationally requires about £1 million a year. It would be dreadful for somebody to pluck up the courage to phone a friend in extremis to ring that number and find it dead. Without the certainty that that £1 million will be there or that there will be some other means of achieving it, that potential lifeline is not being rolled out. Far be it from me to suggest in the current climate that the Government should dig deep, or even quite shallowly, into their pockets and find that extra money, but there has to be a way that together Ofcom, the telecoms operators and the Samaritans can get together and produce some way of doing this. Perhaps the lottery could help. It might cost a little money, but what it would save is immeasurable.
The Lord Bishop of Exeter
My Lords, I, too, am grateful for this debate. There are just two aspects on which I shall comment. The first is the issue of suicide prevention among people in contact with the criminal justice system—something that concerned me greatly in my early years as Bishop of Exeter. In the three prisons in the Exeter diocese, 20 men committed suicide between 2001 and 2011. Of these, 14 were at Exeter prison—a figure which reflects the higher incidence of suicide in local prisons, especially during the early days of imprisonment. Half of these deaths, though, were between 2001 and 2004, and I note that the number of suicides in prison nationally has also fallen steadily since 2004, apart from a spike in 2007. Hopefully this is a sign that measures taken under the NOMS suicide prevention strategy are having an effect. However, with 57 suicides in prison in 2011, there is still real cause for concern.
I am also aware that on 6 March this year, the Prisons and Probation Ombudsman published a “Learning lessons” bulletin, following investigation of the apparently self-inflicted deaths of three teenagers in young offender institutions. Each of these children was extremely vulnerable and the lessons learnt included better responses to bullying and a greater focus on the involvement of families and outside agencies. This is where I come to my second area of concern and the main subject of this debate. From this month, local authorities have new responsibilities for co-ordinating and implementing work on suicide prevention. It will be for local agencies, including working through health and well-being boards, to decide the best way to achieve the overall aim of reducing the suicide rate. However, while there are clearly opportunities here for local initiatives in co-ordinating and commissioning work, there is also a risk that, especially where there is no local suicide prevention plan, this priority may be overlooked in the allocation of funds.
The findings of the All-Party Group on Suicide and Self-Harm Prevention have already been referred to by the noble Baroness. Only half of local authorities have a local suicide prevention group, while a quarter said that there was no local suicide prevention plan, even where there is a local suicide prevention group. Often there is no formal mechanism for such groups to report directly to health and well-being boards. Only one-third of respondents mentioned specific suicide prevention programmes. Yet the report also mentioned the key role of third sector groups. Many suicide prevention actions contained in local plans involve the voluntary sector in delivering programmes such as support services for people bereaved by suicide. From the available evidence, the majority of groups had voluntary sector membership, underlining their importance to suicide prevention and the heavy reliance on them.
However, within the voluntary sector there are real concerns about the responsibilities placed upon them and the resources that enable them to respond. Take the example of just one not-for-profit, open-access counselling service in Devon. It sees around 160 clients a week. These are self-referring adults who pay according to means. Work is with individuals, couples and family groups. There are no paid employees and all are qualified volunteers. The work of such groups is really important, because the potentiality of suicide often does not appear as a presenting issue, but rather through other therapeutic work, revealing, for example, patterns of isolation, self-harm and despair. However, the sustainability of such a model of group work is increasingly a challenge in the current economic climate. Average client contributions have fallen and margins are tight. Yet the self-funding model still seems to be the only viable way of securing an effective service. Counselling services are notoriously difficult to fund. Counselling does not constitute a “charitable purpose”—something at which Her Majesty’s Government need to take a look—and thus many funders exclude counselling services as recipients.
Where funds are available, such as lottery funding, they can amount to the kiss of death for a service as they are often short-term. Culturally, funders tend to favour innovation and new services in preference to tried, tested and researched ways of working, and funding projects rather than vital revenue costs. In my own areas, the combination of these facts has led to the closure of numerous local services over the years, revolving door-style, including high-quality and relatively inexpensive services for young people at high risk. The fact is that this very important voluntary sector, of which much is expected, suffers from gross systemic underfunding, is too often neglected for its experience and understanding, and thus such funding as there is may often be misdirected and unwisely spent. I think, for example, of the privileging of short-term cognitive behavioural therapy over person-centred and psychodynamic approaches, which evidence shows have a greater longer-term effect.
If Her Majesty’s Government’s well intended suicide prevention strategy is to really work, more attention needs to be given to just how the voluntary sector is most effectively supported and engaged. This also means rectifying the fact that, while much of this work in the third sector is underpinned by a strong faith base, and a great deal of work is being done by faith groups in supporting those at risk of suicide and self-harm, I find it concerning that there is so little reference to faith groups in any of the official documents underpinning the structures and strategies that we are debating today.
Lord Grade of Yarmouth
My Lords, I declare an interest as another member of the Samaritans advisory group; I think we are quorate today, which is good news. I also declare another interest, as an independent lay commissioner of the Press Complaints Commission, since I want to talk a little bit about the media role in this subject.
About 28 years ago, my boss and mentor fell out of a window four or five stories high in a block of flats. The next morning, the Daily Mail’s front page had a photograph of a mansion block of flats, and a dotted line from the fifth floor to the pavement where he fell. His children had to look at that in the newspaper. The story of media coverage of suicide, and its imitative effects and so on, is actually a good story from that day because coverage is much more sensitive. It is much improved. Editors and journalists are much more aware of the damaging effect of the wrong kind of sensationalist and detailed coverage of the methods of suicide. This is particularly true in broadcasting, where the statutory guidelines for producers and coverage and so on deal in great detail with the coverage of suicide. The media have for once a good story to tell in the way they deal with this subject. There is a substantial body of evidence from around the world which indicates that certain types of media reporting of suicide can have a negative influence on the behaviour of people who are already vulnerable and put them at greater risk.
I am worried about the uncertainty, the lacuna that exists, as we move from the PCC to the Leveson-compliant new formula. There is considerable uncertainty about the nature of that, who is going to sign up to that regulation and so on, which has been well rehearsed in the Chamber. I am worried that the progress that the media has made—and it is a good story—should not get lost. The Government, and those charged with setting up the new body, will understand that the good work that has been undertaken should not be lost in the transition from the PCC to whatever the new body concerned is.
Others have spoken about the good work that the Samaritans and other organisations do, and that has to be true. The “116” phone line that my noble friend Lady Wheatcroft alluded to is a serious worry. We have to find the money to make this happen. I do not think it has to be government money—it is only £1 million. I know it is easy to say that but, somehow, through the lottery—I declare I was once chairman of Camelot—there has to be a way to find this money on a regular basis, because those calls may well, although I am sure not always, be life-saving.
One of the most worrying aspects concerns the causes of suicide. Sadly, throughout my professional and personal life, I have been very close to far too many suicides. In one or two cases you could look at them and say they had everything to live for. Lack of recognition of the symptoms is the most difficult aspect of this subject. I hope that the ease and availability of the Samaritans service and the “116” lines will permeate people’s consciousness, that they will make that last despairing call and that they will be able to afford to do so because the Samaritans can pay for it. That could, in time, save lives.
It is rare these days to pay tribute to the sensibilities and sensitivities of the media, but in this particular case I am very happy to put that on the record. I thank the noble Baroness, Lady Buscombe, for this debate, and all those who have taken part.
The Earl of Sandwich
My Lords, I thank noble Baroness for this opportunity. It seems that we are all supporters of the Samaritans, which is a wonderful organisation.
As the Minister knows, a member of my family has suffered for four years from acute withdrawal from benzodiazepines, especially sleeping pills given to him during periods of overwork and stress. He still suffers from burning sensations, tinnitus, agoraphobia and occasional suicidal tendencies that have confined him to his room—mostly unable to work or help his family.
This group of patients is still beyond the reach of the National Health Service. They are living in a policy “no-man’s land” because there are hardly any statutory services available or even people who are aware of their condition. Friends and family feel helpless and, in fact, are unable to help beyond informal counselling. There are dangerous moments when no one seems to be able to do anything. In this sense, the urban community has failed much more than the rural one.
Those who suffer first addiction and then withdrawal from prescribed iatrogenic drugs cannot look to their GPs or local clinics like other patients, because it was their doctors who prescribed the pills in the first place. The patients may have desperate thoughts of going to A&E as their last resort, until they remember that they will only be referred to a psychiatrist who will put them back where they started. The only slender threads of hope may be online, with the next e-mail from a fellow sufferer, or via a helpline to one of the saintly withdrawal charities such as CITAp in Liverpool, Recovery Road in Cardiff, the Bristol & District Tranquiliser Project or MIND in Camden, which is the only voluntary service available in London, but only to those who live in Camden. Some of these charities take thousands of calls a year, and I have no doubt that the Samaritans take many more similar calls from the same people.
I declare an interest as the vice-chair of the All-Party Parliamentary Group for Involuntary Tranquiliser Addiction. We are a small core group of about 12 active MPs and Peers. With occasional help from the media, we have been able to bring this issue to the attention of successive Ministers. The BMA held a useful seminar recently. I am glad to say that the present Health Ministers are now well aware of the risks, because it is known that 1 million people or more are taking benzodiazepines long term, not short term, and that their doctors are not stopping them. The Minister will remember all the arguments that we put forward during the Health Bill, and they remain valid today. These include the obvious need for greater awareness among doctors and junior doctors of the risks, good practice in the voluntary sector, better NICE and NTA guidelines, more understanding of the general protocol of withdrawal from prescribed drugs, and the need for a stronger national policy backing up the confusing new local health agenda. I went to see Public Health England only this afternoon and was encouraged that the new health and well-being boards and CCTs will have this subject in their list of priorities, but it will need a lot of encouragement.
Equally important is the need for the department to shift its spending priorities and its drugs agenda just a little way away from illegal drugs towards prescribed drugs. It is really the Samson and Goliath story. Almost all the knowledge in the National Treatment Agency is about methadone and alternatives to heroin, and about counselling. There is very little knowledge of the dangerous effects of prescribed benzodiazepines, SSRIs and Z-drugs, unless they coincide because people are using them with heroin. The US has much more experience. Changing the dosage of Prozac, for example, can trigger suicidal tendencies immediately. There is a black box warning of this in the United States.
We have now reached a critical point with all the new NHS changes. The voluntary agencies have high expectations that the Government will take these various points to heart, recognise the good practice that is out there and give it their fullest support. As the noble Baroness, Lady Buscombe, said, co-operation rather than competition is absolutely vital in this field.
Baroness Royall of Blaisdon
My Lords, I thank the noble Baroness, Lady Buscombe, for this important and timely debate. I am not a member of the Samaritans board. However, I fully support the calls for a free-to-caller number. I hope that Ofcom and the telephone companies are listening. I wonder whether we should all pen a joint letter to Ofcom and the telephone companies after this debate.
Like other noble Lords, I thank the organisations that have been mentioned, including faith groups, and especially the Samaritans in their important anniversary year. All these organisations, with their thousands of volunteers, work with, care for and support people who are troubled or have a mental illness. For too long, mental illness was shrouded by stigma and deprived of adequate resources. People with a mental illness, including those at risk of suicide, have always depended on what the Government might call the big society. The Samaritans have a shining record on this very tough subject. Thankfully, the stigma in society relating to mental health is increasingly being lifted, and all parties recognise the need for mental health to have parity with physical health. We would all agree on there being no mental health without physical health—and, I would add, without appropriate social care.
As Call to Action informs us, more lives in England are lost to suicide than to road traffic accidents, and every life lost to suicide is a tragedy. I welcome the cross-government strategy on preventing suicide. However, like Sarah Yiannoullou, the manager of the National Survivor User Network, I am concerned that self-help groups, survivor groups and small voluntary and community organisations that have helped with a preventive support have had increased burdens put on them and are having to close because of funding problems. There appears to be a conflict between what is said in the strategy and people believing that this can be delivered in the current climate. The right reverend Prelate made very important points about systemic and short-term funding.
Mental health services are clearly critical in providing the timely help and emotional support that can reduce the risk of people committing suicide. Having spoken to people working in mental health in my county of Gloucestershire, I know that they fear that recent changes in the NHS and the fracturing of services will have a negative impact on the delivery of mental health services in the community, especially in rural areas. There appears to be less co-ordination and less support for joint efforts between health services, charities, churches and other organisations that are working with people who have mental health problems. I would be grateful for the noble Earl’s views on whether there is appropriate integration where necessary. It feels as if the postcode lottery is being extended.
A briefing by the excellent organisation YoungMinds provides disturbing information about cuts by local authorities. Some have slashed 27% of their services, which has had an impact on people with mental health problems. Like the noble Baroness, Lady Buscombe, I am deeply concerned about the lack of local suicide prevention plans. The Government must not only provide requirements for such plans but must ensure that the funding is there in order for local authorities to implement the plans.
Society has changed profoundly in the past 50 years. We now live in a physically safer society, but emotionally people are far less secure. As many noble Lords said, many people live alone, and even when they do not live alone, they feel alone. We are all living longer, we have more stressful and isolated lives and we have to cope with huge and constant change. As the noble Lord, Lord Roberts, said, the increase in young people’s mental health problems is very disturbing. The factors that contribute to mental health problems, and indeed to suicide, such as drug and alcohol misuse, unemployment, social isolation, poverty and poor social conditions, appear at the moment to be increasing, and there are so many stresses and strains in society with little help available. There is a lack of hope, and it is incumbent on us all to give people more hope and vision for the future.
I look forward to the answers from the noble Earl about the support that the Government are providing to the voluntary and statutory sectors. Perhaps one of the greatest supports would be for the Government to change some of their current policies so that factors such as poverty, which increase the risk of suicide, are reduced. The risk of suicide in the whole population increases when we experience times of financial difficulty—this is not only my view but a widely held one—so I urge the Government to maintain their support for suicide prevention over the coming years.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, my noble friend Lady Buscombe is to be congratulated for bringing forward this emotive and important subject for a debate, which has generated some splendid speeches for which I, for one, am very grateful.
The loss of a loved one to suicide is a tragedy, and yet suicides are not inevitable. There are often opportunities to intervene, and those missed opportunities can highlight systemic failings. Timely access to high-quality mental health services is an essential foundation for suicide prevention. Although good progress has been made in reducing the suicide rate in England over the past 10 years, the recent rise in the number of people dying by suicide to around 4,500 in 2011 is worrying. Suicide continues to be a major public health issue, particularly at a time of economic and employment uncertainty. That is why we set out a new suicide prevention strategy for England in September 2012, which highlights the importance of targeting the groups most at risk by providing the right support at the right time.
My noble friend helpfully set out the key strands of that strategy and I was grateful for her endorsement of them. She is right that success in suicide prevention depends on communities, individuals and organisations working together to tackle the issue. Much of the planning and work to prevent suicides needs to be carried out locally. The right reverend Prelate rightly referred to the role of the new health and well-being boards in planning and co-ordinating local services based on local needs. That role will clearly be a pivotal one in the future. These health and well-being boards will become the forums for determining local needs and priorities, bringing together local authorities, clinical commissioning groups, directors of public health, adult social services and children’s services. I am sure he is right that third sector and voluntary groups will pay a key part in the delivery of local plans in many parts of the country. The concerns expressed by the noble Baroness, Lady Royall, about fragmentation of services are not ones I share. She may recall that in the Health and Social Care Act we laid great emphasis on integration as a key driver of commissioning. The very existence of health and well-being boards acting as the hub for so many key players in the public health and health arena will itself be a driver for that kind of integration.
As well as targeting high-risk groups, improving the mental health of the population is another way to prevent suicide, as has been mentioned. Our mental health outcomes strategy, No Health Without Mental Health, sets out an ambitious vision for improving people’s mental health. The implementation of the measures set out in the strategy will build individual and community resilience, promote mental health and well-being and challenge health inequalities where they exist. Again, the Health and Social Care Act passed last year was the first one to contain an objective in all parts of the health service to drive out health inequalities.
The noble Baroness, Lady Royall, referred to the need for parity of esteem between mental and physical health. Of course, I subscribe wholly to that aim. The Government’s mandate to NHS England explicitly recognises the importance of putting mental health on a par with physical health, and closing the health gap between people with mental health problems and the population as a whole. We expect the NHS to have made measurable progress towards this goal by March 2015. This will include ensuring timely access to the best available treatment through extending and developing open access to the IAPT programme, Improving Access to Psychological Therapies, particularly for those out of work. I think that is an important part of the targeting philosophy.
Alongside the development of the suicide prevention strategy, Samaritans—to whose work I pay special tribute in their anniversary year—have been facilitating a Call to Action for Suicide Prevention in England, supported by a grant from the Department of Health. Over 50 national organisations have signed the Call to Action, committing to work together so fewer lives are lost to suicide and to support those bereaved or affected by suicide. Organisations include public and private sector bodies and a wide range of charities, including those set up specifically to reduce suicide such as Papyrus, a charity dedicated to the prevention of young suicide in the UK. This is the first time that so many organisations have come together to deliver real action to reduce suicide across England.
Most people who take their own lives have not been in touch with mental health services. We know that some people, particularly men, find it difficult to speak to their doctor if they are having mental health problems, and this is partly because of stigma and shame. By tackling the stigma associated with mental health problems, we can remove a barrier to people seeking and receiving the help they need before they get to crisis point.
The department is therefore supporting the anti-stigma campaign, Time to Change, with up to £16 million of funding over four years. The campaign is run by the charities Mind and Rethink Mental Illness, and is an ambitious programme to end mental health stigma and discrimination. It has the potential to reach 29 million members of the public with its vital messages on mental health.
We know that the media have a significant influence on behaviour and attitudes towards suicide. My noble friend Lord Grade was absolutely right to highlight this. A number of organisations have developed guidance for the media on the reporting of suicide and its portrayal. One of these is Samaritans, which plays a key role in supporting sensitive reporting of suicide.
As my noble friend said, the media have a significant influence on behaviour and attitudes. There is already compelling evidence that media reporting and portrayals of suicide can lead to copycat behaviour, especially among young people and those already at risk. The media is aware of its responsibility in the representation of suicide. In 2006 the Press Complaints Commission added a clause to the editors’ code of practice explicitly recommending that the media avoid excessively detailed reporting of suicide methods. The 2009 edition of the PCC Editors’ Codebook highlights, for example, the distress that can be caused by insensitive and inappropriate graphic illustrations accompanying media reports of suicide.
We have made grants to charities directly involved in suicide prevention. In March 2010, Maytree Respite Centre was awarded a three-year grant totalling over £154,000 to support the continued implementation and development of its service. Maytree is a sanctuary for people in suicidal crisis, providing a non-medical alternative to hospitalisation or sectioning. The grant helped the organisation support over 4,000 people, with 300 being supported through a stay at the house. It also helped them to develop outcome-focused relationships with several NHS and private organisations. In March 2011 we awarded a £50,000 one-year grant to Survivors of Bereavement by Suicide, a charity that serves more than 8,000 clients each year. They provide a range of services from a national telephone line to local area support groups.
Early intervention is imperative to suicide prevention and various organisations, including charities, can help highlight and address problems such as bullying, poor body image and lack of self-esteem. The commitment to early intervention is borne out by the Department of Work and Pensions’ expectation that all Jobcentre Plus advisers are trained to enable them to identify and support people who are vulnerable and who may be at risk of suicide and self-harm. This is important, as we know that community locations, such as job centres and young people-friendly venues, are more successful in engaging with young men than more formal health settings such as GP surgeries.
The noble Lord, Lord Giddens, whose speech I listened to with great attention, spoke about statistics. I will certainly go away and reflect on his points on that score. He asked what the Government’s policy was on prevention at popular suicide spots. The suicide prevention strategy recognises that one of the most effective ways of preventing suicide is to reduce the means to access. Suicide risk can be reduced by limiting access to high-risk locations. Much of the planning and work to prevent suicides will, as I have said, be carried out locally; it will be for local agencies, working through health and well-being boards, to decide the best way to achieve the overall aim of reducing the suicide rate. I fully expect that the local agencies will work together to monitor those hotspots.
My noble friend Lord Roberts pointed to the effect of unemployment, a point made effectively by my noble friend Lady Wheatcroft. We know that previous periods of high unemployment or severe economic problems have had an adverse effect on the mental health and well-being of the population and have been associated with higher rates of suicide. Despite the good progress that has been made in reducing the suicide rate, we need to remain vigilant on that particular aspect of the risk.
Faith groups were mentioned by a number of noble Lords, including my noble friend Lord Roberts. I assure the Committee that the department recognises the comfort and support that people receive from their faith and would expect all medical practitioners to treat their patients holistically, taking into account their physical, cultural, social, mental and spiritual needs. The Government’s mental health strategy, No Health Without Mental Health, draws attention to the importance of ensuring that services meets the needs of diverse communities and faith groups. The right reverend Prelate will know that the former Archbishop of Canterbury, Rowan Williams, and Time to Change recently hosted an event for leaders from different faiths to look at ways of tackling the stigma and discrimination faced by people with mental health problems in their communities. That seminar was held at Lambeth Palace and was extremely well received.
The noble Earl, Lord Sandwich, spoke about the risk of prescribed anti-depressants. The suicide prevention strategy highlights the potential increase in suicide risk in the early stages of drug treatment and risks associated with withdrawal where people are dependent on prescribed drugs. The noble Earl has expressed his concerns forcefully in debate and privately to Ministers, and he knows that these messages have not gone unheeded—at least, I hope that he knows that. It is, as he said, for health and well-being boards to build into the joint strategic needs assessment suitable provision for this particular type of suicide risk.
Over the past 10 years, good progress has been made in reducing the suicide rate in England. Voluntary organisations, charities and community and faith groups have all played their part in this reduction. The messages are clear. We need individuals and organisations to support our continued efforts, to join us in our drive to sustain and reduce further the relatively low rates of suicide in England and to respond positively to the challenges that we face over the coming years.
Lord Grade of Yarmouth
Will my noble friend the Minister be kind enough to give us the benefit of his advice on how we might move forward an initiative to roll out the 116 line? I am much taken with the noble Baroness’s view that we might all write a letter, but I wonder if it is an initiative that the department might want to take up and try to co-ordinate to see if we can get a resolution.
Syria: Refugees
(11 years, 7 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Blackstone
To ask Her Majesty’s Government what assessment they have made of the short and long-term implications of the large influx of refugees from Syria into neighbouring countries for those countries; and what steps they are taking to work with the international community to provide improved humanitarian aid.
Baroness Blackstone
My Lords, I put down this Question for Short Debate in a context where the prospects of an end to the civil war and peace in Syria seem ever more remote. In these very sad circumstances the flight from Syria to neighbouring countries of people seeking a safe haven from the shelling, bombing and destruction of their communities seems likely to continue indefinitely. In the past six months there has been a rapid increase in the numbers fleeing, which shows absolutely no signs of flattening off. There are now close to 1.5 million refugees in neighbouring countries, nearly half of whom are children under 18. The United Nations predicts that the figure will rise to 3 million by the end of the year. Inside Syria there are currently another 2 million displaced people, and the UN estimates that more than 4.25 million are in need of urgent assistance.
The number of refugees who have fled the country has almost doubled, then, since the beginning of February, when the Secretary of State for International Development made a Statement in another place. In that Statement she said that pledges at the special conference in Kuwait in January to discuss the humanitarian crisis amounted to £1.5 billion from 60 countries, which exceeded the UN’s target. Can the Minister indicate how far these pledges have turned into tangible commitments? The estimates I have seen make very depressing reading: only just over half the pledges appear to have been committed. It would be helpful if she could also give the most up-to-date figures on how the funds are being distributed across the region.
I am pleased, as I am sure other speakers will be, that at that time the UK’s total commitment to humanitarian support had reached £139.5 million. However, given the huge increase in the numbers of people displaced since then, I ask what plans the Government now have to increase aid, given the terrible suffering of those fleeing, which I have seen at first hand, as well as the intolerable pressures on neighbouring countries that are being overwhelmed by the escalation in the number of refugees.
Early in February, along with my noble friends Lady Jay and Lord Warner, who are also speaking in this debate, I visited the Lebanon under the auspices of the Council for European Palestinian Relations and witnessed what is happening to one particular group of refugees, Palestinians, who constitute 10% of all refugees from Syria. Their situation is even more dire than that of the Syrians. When they come across the border into neighbouring countries such as the Lebanon they are not eligible for UNHCR support but instead are looked after by UNRWA, the UN agency responsible for supporting Palestinians in the West Bank and Gaza as well as in neighbouring countries. Many of them arrive with little money and not much more than the clothes they are wearing. They are traumatised, having been bombed out of their homes, and in some cases have lost members of their families, too. They are poor people, made poorer by the war that has enveloped them.
When they arrive in Lebanon they are looked after by the existing Palestinian population who live in semi-segregated communities in refugee camps, many of which have existed since 1948. These so-called camps are already overcrowded and without the space and facilities needed to take in the new influx of refugees. As a consequence, families with children of all ages have to fall back on renting appalling accommodation at exorbitant rents with money that they brought with them from Syria, or sharing makeshift rooms that have been provided with the help of NGOs or the Palestinian political organisations. In some cases, Hamas and Fatah have made over their offices to house these families; in other cases, the refugees are accommodated in totally unsuitable vacant school buildings; in yet more cases, they are put up in new temporary buildings with tiny rooms divided by plywood partitions. Sometimes two or even three families have to share whatever accommodation they have managed to find in a room furnished only with thin mattresses. The washing and cooking facilities are primitive and shared by many people. Some rented rooms have water coming through the ceiling, and exposed wiring.
The influx of refugees has already pushed up the population in Lebanon by over 10%, compared with around 6% in Jordan. As the conflict in Syria continues, the numbers of refugees in Lebanon, and indeed elsewhere, will go on growing, exacerbating the problem of accommodating them. So far, the Lebanese Government have agreed to keep the border with Syria open, but, in a context where their survival is by no means certain, political pressure could push them into closing it.
Meanwhile many of those crossing the border arrive with unresolved health problems and injuries sustained from bomb blasts and shrapnel. They cannot afford to pay for the treatment they need after they arrive; even modest amounts of medication to relieve suffering among children and the elderly are often unavailable. Providing schooling for their children has been jeopardised by differences in the curriculum between Syria and the Lebanon, and many school-age children are receiving little or no education.
UNRWA is struggling to deal with the crisis and has insufficient funding. It is focusing its efforts on providing small cash grants to families and trying to rectify the lack of schooling. It seems unable to tackle the fundamental problem of providing adequate accommodation. The Lebanese understandably consider that it is a matter for the international community, and there is little or no political will to shoulder the burden. This means that the burden falls on the existing Palestinian community, which has never been able to throw off its refugee status in Lebanon.
While there has been some lifting of the prohibition on Palestinians obtaining jobs, the reality is that there are few employment opportunities for them. Hamas and Fatah are trying to raise money from their own sources and are co-operating with the UN. Sadly, the EU makes no contact with Hamas in Lebanon, even on humanitarian issues, and I would welcome a view on this from the Minister. Do the Government consider that contact on these issues would help?
My noble friend Lady Jay will focus on the effects of the influx of refugees from Syria on the surrounding countries, so I shall be brief. We owe our thanks not only to Lebanon and Jordan but to Turkey, Iraq and Egypt for their generosity in supporting thousands of traumatised and penniless people. However, it is imperative that the international community does more to help these countries, several of which have fragile regimes with their own problems of maintaining stable rule and political, ethnic and religious harmony. These countries also face increased economic pressures, with steeply rising rents caused by the increased demand for housing as well as rising food prices.
Most aid is going to refugee camps, even though about 70% of Syrian refugees live outside the camps, whether in urban or rural areas. Above all, the urban infrastructure needs to be strengthened. Cash assistance is also needed to help refugees feed their families. There is evidence that women are going without food to provide what little they have for their children. For the host countries the refugees are straining water, sanitation, housing, health and education systems. Obviously, as this continues there will be growing tension between the host and refugee communities in the already depressed areas where they settle. The political ramifications are obvious and could push some countries into closing their borders, trapping refugees inside Syria.
What progress have the Minister and her right honourable friends made in securing greater earmarked commitments, especially to Lebanon and Jordan, from other donor countries? Is further consideration being given to whether the UK’s earmarked contribution of £8.5 million for programmes in Lebanon might be increased? Could she also comment on how the vital co-ordination of humanitarian agencies’ work with UNHCR, which is needed to produce a more effective response to the complex challenges that they face, might also be applied to UNWRA? What is being done to facilitate co-ordination between the Gulf donors and the United Nations?
I end with the emotional plea of one elderly Palestinian woman I met outside the Wevel refugee camp not far from the Syrian-Lebanese border: “We are human beings but we are being forced to live like animals. Please help us”. She will of course be helped when a ceasefire takes place and a political solution is found that leads to peace, but we cannot leave her and the many others like to suffer so terribly until that happens. We have to prepare for a protracted humanitarian emergency with longer-term funding, allowing NGOs to plan for the future. We should also be aware that an end to the conflict and a post-Assad regime will not necessarily lead to an end to sectarian violence. I hope that the UK Government will act urgently to do all that they can in the international community to avoid a much larger-scale humanitarian disaster than the one that we already face today.
Lord Sheikh
My Lords, I thank the noble Baroness, Lady Blackstone, for initiating this debate.
The appalling humanitarian crisis in Syria is heaping significant pressure on neighbouring countries that are wilfully accepting refugees fleeing in search of a safer environment. I maintain very close links with the kingdom of Jordan and, as such, want to place a particular focus on the situation there. Since early 2011 some 500,000 Syrian refugees have fled to Jordan, an increase of two-thirds on the number that were already settled there beforehand. Of even greater concern is the extent to which the intensity of the crisis is increasing. Of those 500,000, 46% arrived just in the first quarter of this year. By these numbers, Jordan projects that an extra 1 million Syrians will enter the country in 2013.
Jordan has already established four refugee camps, run for the most part by the United Nations. However, it remains the case that only 40% of Syrian refugees actually reside in these camps, with the rest settling into numerous communities across the country. There are now monumental challenges to be overcome, just in terms of fulfilling basic human needs. Greater power generation is urgently needed, which will require greater imports of oil. This will have a negative impact on the economy and Jordan’s balance of trade. Jordan is already short of water supplies, and a sudden increase in population would serve only to put further pressure on an already strained system.
The Jordanian Government are also very concerned about the overcrowding in schools and the inevitable effect that this will have on the quality of education. Jordan has spent considerable money reforming its education system in recent times, and this overwhelming pressure undermines that progress. There are similar concerns in healthcare. Jordan has been providing thousands of vaccinations to Syrian children against a number of diseases and other forms of medical care to Syrians in general. Again, it is now in desperate need of extra resources and hospital expansions.
This has all come at a time of a slowdown in economic growth and employment rates in Jordan, as well as the country’s budget deficit reaching an all-time high. Last year, Jordan spent more than $251 million providing basic services to Syrians in its cities and communities. These costs are projected to skyrocket and my worry is that a potential emerging market such as Jordan is having its economy broken through its own goodwill to others.
Such a large and sudden influx of refugees is naturally going to present extreme political challenges, too. Some of the camps have witnessed riots and some Jordanian police have already been injured in clashes. While the security services are doing their best, it is impossible to ensure the completely smooth running of such a complex and ever-changing situation. The Government of Jordan have formulated their own response plan for the country to host an increasing number of Syrian refugees. I call on our Government to both increase their support to Jordan and use our position within the international community to call on others to do the same. We must all help to alleviate the pressure on Jordan’s fragile economy.
Diplomats at the Jordanian embassy in London told me that they see it as their moral and humanitarian duty to help anybody in the region seeking refuge and a better life. Given the level of tension and unpredictability in the region, I find such principles extremely heartening.
Baroness Jay of Paddington
My Lords, I am very grateful to my noble friend for asking this Question. I found our visit to Lebanon, short as it was, very disturbing but in a few days I learnt a great deal, particularly about the special problems of the Palestinian refugees from Syria. Of course, these people are refugees twice over. In Syria, they had fled originally from their homeland and now have fled again from the conflict in Syria. Interestingly, before the violence erupted there surveys suggested that many of the Palestinian population found Syria the best country of their exile. They had educational and work opportunities denied in other places, and living conditions which were reasonably pleasant. All that has of course now changed and my noble friend has vividly described the terrible poverty and despair of the displaced families we met.
I also felt among them a great sense of frustration. Many people, as I said, came from settled lives in Syria and many had professional careers. We talked, for example, to several teachers who are now unable to work in Lebanon because of the restrictions imposed on them by the host Government. These restrictions seem in some ways to illustrate the tensions which there are between the refugee population and the Government of Lebanon. It seems to create an obvious double difficulty, as the teachers cannot help the many children who are now kicking their heels in refugee camps. Neither can they earn their own living, so that any support they have comes from the specialist Palestinian agency UNWRA—the United Nations Relief Works Agency.
This situation is of course not only one for teachers but for many other professional people who have come from a Palestinian background from Syria. I was somewhat surprised that the UNWRA officials we talked to seemed to accept this situation as given. As far as we could tell, they were not pressurising the Lebanese and telling them that they should be lifting the work restrictions in the face of the influx of new people. I must say that we were not entirely convinced that UNWRA has been sufficiently flexible in its approach to the newcomers from Syria.
In the high-level government meetings that I attended in Beirut, our delegation raised the question of giving Palestinians the right to work. We were told that new laws had been passed in 2010 to ease the employment restrictions and improve general civil rights, but those laws have never been implemented. The Libyan president, who we saw, was quite adamant: his Government must give first priority to protecting Lebanese jobs for Lebanese workers. The country’s political and economic situation is too fragile to do anything else. The threat of internal instability was ever present in our discussions. Indeed, the EU ambassador told us that she was surprised that the Government had not yet collapsed under the new demands.
Memories of civil war as well as hostilities with Israel still dominate the politics of Lebanon. Indeed, both Jordan and Lebanon—the small neighbours of Syria—have internal and strategic reasons to be unstable. If their Governments cannot cope with the current refugee crisis, particularly the Palestinians, this will create an international danger way beyond the humanitarian crisis. The domino effect that could occur would reverberate throughout the Middle East and beyond.
The UK Government have been commendably active and generous in trying to alleviate the practical hardships facing the thousands of displaced people, but the time has come for us also to give a lead in supporting the governance of Syria’s neighbours, which are dealing with unprecedented pressures on an already fragile economic and governmental situation.
Baroness Falkner of Margravine
My Lords, I thank the noble Baroness, Lady Blackstone, for giving us this opportunity to debate Syria in this short period of time. It is sobering to speak yet again on the situation of the people of Syria in the context of humanitarian assistance. It speaks to our impotence that more than two years into the civil war, which is bordering on genocide, all these rich and powerful countries are simply squabbling between themselves about not violating national sovereignty.
We are in 2013, eight years since the General Assembly of the United Nations passed overwhelmingly a resolution defining the international community’s responsibility to protect, yet all we can do is offer sticking plasters and bandages to the 22 million people who have had the misfortune to be born of Syrian nationality, who are now killed or driven from their homes, or take up arms on one side or another.
It is right that we have a generous programme of assistance to those unfortunate enough to be displaced, either formally as refugees or informally, relying on their friends and families or simply co-religionists in neighbouring Jordan, Lebanon, Iraq or Turkey. We have heard from the noble Baroness, Lady Blackstone, as well as the noble Baroness, Lady Jay, and the noble Lord, Lord Sheikh, about the fragile situation in those countries. Our attempts to stabilise them are to be commended but to restrict this debate to the humanitarian situation, while pragmatic in the best British tradition, is to miss the point.
If the civil war continues for the next few years, there will potentially be no Syria left. What we might find when everyone is exhausted of fighting and everything is destroyed is a series of provinces run by warlords or rebel armies, ethnically cleansed, existing in a sullen peace if peace is there at all—a larger Yemen, in the grip of al-Qaeda or other Salafi groups, controlling their own territories with different degrees of terror, in the name of Islam.
So what is to be done by the West or at least by the United Kingdom and France? For a start, we should let the EU arms embargo expire so that arms can flow to the Free Syrian Army. Syria is flush with arms. They are mainly going to our opponents in the terrorist groups or to our opponents in the regime of Bashar al-Assad. Moreover, we should seriously contemplate enforcing a no-fly zone, at least over the part of the country that we might declare a humanitarian enclave, and then press the Syrian national coalition to work with the elements of the FSA that are representative of all communities to run that enclave peacefully. To do so would require us to equip the Free Syrian Army more adequately.
Noble Lords will have seen the interview in the Financial Times with General Salim Idriss, the chief of staff of the various groupings in the rebel forces, which are described as the “supreme military command”. He says:
“What’s the point of medicines to save one wounded soldier if the regime’s air force is striking and killing 40 people at the same time?”.
The only argument used against supplying lethal weapons to the Free Syrian Army is that the weapons we might give them will slip away into the hands of Jabhat al-Nusra, which declared its allegiance to al-Qaeda only last week. In Istanbul General Idriss gave a commitment to the West that his people would track every single advanced weapon provided and return it when the conflict was over. If one did not believe his assurance, the question remains: how do we expect the conflict to end when Qatar, Saudi Arabia and other neighbours are arming some factions, while Russia and Iran are arming the regime? Our Government must ask themselves how they expect to bring the conflict to an end. Is it the surest way to stop humanitarian disaster just to continue if everyone bar us puts arms into the equation or provides military support? How do we somehow obtain a peaceful Syria? What are we to do if chemical weapons are used or if genocide is committed but we do not live up to our legal obligations under the genocide conventions? Noble Lords will know that the ICJ ruled only a few years ago that every state has a duty to prevent genocide. That was the ICJ’s case in Bosnia-Herzegovina v Serbia.
Therefore, for those who fear a repeat of Afghanistan, their inaction may well bring about an analogous situation nearer our borders and lie heavier on our consciences than they have seen before.
The Lord Bishop of Exeter
My Lords, I have just three points to make. The first concerns the humanitarian dimension of this crisis. The figures are horrendous. I shall not repeat what the noble Baroness has already said but simply note an acceleration in the number of refugees fleeing. There have been more than 40,000 a week since January, and in four host countries—Egypt, Iraq, Jordan and Lebanon—the number of Syrian refugees has to date already exceeded the UNHCR estimate for January to June this year in total.
We have already had our attention directed to Lebanon. It alone has received an influx equivalent to 10% of the host population, placing a huge strain on the country: communally, as most of the refugees are Sunni Muslim, which threatens Lebanon’s delicate communal balance; economically, as there are now food and power shortages; and socially, with a big increase in the crime rate. This inflow, bringing 32,000 Palestinian refugees from Syria into a country which already has around 450,000 Palestinian refugees, brings the potential for further destabilisation in a country where volatility is already great.
There are similar problems in Iraq, which not so long ago saw an exodus of its own refugees, particularly Christians, into Syria. It is now in receipt of at least 130,000 refugees, mainly in the Kurdistan region, with all its own uncertainty. Then there are other large concentrations of refugees inside Jordan with over 430,000, Turkey with nearly 300,000, and, increasingly, Egypt—a country which has also had to host a large Sudanese refugee population in the recent past.
Secondly, I turn to the geopolitical dimension. This very large movement of population not only is disruptive and damaging to individual lives, and a cause of deep concern for the receiving countries, with all the social, economic, demographic and political consequences that it brings, but is further undermining the stability of the region as a whole, as well as the sustainability of many of the existing states and political entities within it.
Just last week, António Guterres, the UN High Commissioner for Refugees, who had led the UNHCR through the worst of the refugee crises in Afghanistan and Iraq, said that in his view the Syrian civil war was more brutal than both and was already the worst humanitarian crisis since the end of the Cold War. With regard to refugees, he said:
“The system is at breaking point. There is limited capacity to take many more. Where are the people going to flee? Into the sea?”.
However, he then went on to speak about the potentially even more serious geopolitical implications, with the political geography of the post-Ottoman Middle East, which has been in place since the end of the First World War, perhaps for the first time beginning to be put into serious question. Should the substantial possibility of partition in Syria be realised, this would inevitably have grave ramifications in Lebanon, Iraq, Jordan and beyond.
In that context, I come to my third concern—the religious dimension—and especially the future of Christians across this part of the Middle East. For centuries, Christianity flourished in Syria, as it did in Iraq, and, it has to be said, since the Baathist coup in 1970 it has been a particularly safe haven for Christians fleeing from conflicts elsewhere. Indeed, one reason that Russia has refused to abandon President Assad is its sense of responsibility for Syria’s Orthodox Christian community, which is now under a sense of threat. Already, the Christian element of the Syrian population has fallen dramatically to around 10%, and Christians are continuing to haemorrhage from the area under the perceived threat of militant Islam. The spread of jihadist groups within the Syrian opposition and the growth of the mantra that “Islam is the solution” are only exacerbating this flight. Therefore, Christian refugees are fleeing into northern Lebanon as fast as Iraq’s 3 million refugees are beginning to pour back whence they came.
One estimate suggests that of the Christian community of Homs, until recently 150,000 strong, some 90% have now gone to Jordan, leaving only a tiny minority hanging on. Where Christians do remain, once cohesive communities marked by peaceful co-existence and co-operation are beginning to fragment, as those of different religious traditions increasingly draw apart. The disintegration, including the religious fragmentation, that has marked post-intervention Iraq, with all the desperate fallout and its consequences which that country continues to suffer, now looks to be replicated in Syria, and the exodus of refugees into neighbouring countries could exacerbate such a trend in this place as well.
On humanitarian assistance the UK has already done a great deal, but with so many western economies facing huge budget difficulties, what work have Her Majesty’s Government undertaken to meet their £50 million commitment at the Kuwait donor conference, and how will this money be spent? What diplomatic steps are Her Majesty’s Government taking, particularly with the Security Council, to seek ways of addressing the wider geopolitical concerns to which UNHCR has referred? What message, if any, does the Minister have for those Christians fleeing the area, and contemplating a Middle East in which they may no longer be secure or welcome?
Lord Selkirk of Douglas
My Lords, I congratulate the noble Baroness most warmly on raising this extremely distressing but challenging subject. I have every sympathy with the points which the right reverend Prelate has just made. It was the Duke of Wellington who told the House of Lords on 2 April 1829 of his abhorrence of the nature and consequences of civil war. He said that,
“if I could avoid, by any sacrifice whatever, even one month of civil war in the country to which I am attached, I would sacrifice my life in order to do it. I say that there is nothing which destroys property and prosperity, and demoralizes character, to the degree that civil war does: by it the hand of man is raised against his neighbour, against his brother, and against his father; the servant betrays his master, and the whole scene ends in confusion and devastation.”
The iron Duke’s words still serve as an apt enough description of the terrible circumstances of the violent confrontation that has now raged for two years in Syria, and from which more than 1.38 million people have fled to neighbouring countries.
In the face of the huge and growing number of refugees, it is important that we do not forget that each one is an individual whose way of life has been shattered and impoverished. Frightened children, desperate women and the very elderly as well as the lame, the halt, and often the grievously disabled, daily make the long march to seek sanctuary in neighbouring countries such as Jordan, Lebanon and Turkey. Research by the children’s charity World Vision in the Lebanon reports how many of the youngest refugees speak of the violence and death they witnessed before leaving Syria. For example, it tells us of one eight year-old girl called Layla who recounted,
“I saw my cousin dying in front of me, so I always see this scene in front of my eyes.”
Other children describe images of their homes and schools burning, or of people getting shot and tanks roaming the streets of their neighbourhoods.
Earlier this month, the United Nations warned that the World Food Programme was running out of funds to help feed the Syrian refugees, as large amounts of money pledged for aid have not been forthcoming. Apparently, the provision of food aid in Lebanon is under threat as early as next month unless urgent new funding is received. World Food Programme officials have stressed that they cannot simply rely on donations from countries such as the United Kingdom and the US. They have particularly singled out Gulf states such as Saudi Arabia, Qatar, the United Emirates and Kuwait, whose promised large donations have not arrived through UN channels but instead, the World Food Programme claims, are often being donated directly to opposition groups. In total, around $400 million out of the $1.5 billion pledged by international donors in January have actually been committed.
There are three terms for describing humanitarian aid. The first is contribution, which means that funds to a recipient organisation have been delivered. The second is commitment, which comes with contractual obligations. The third is the pledge, which is not binding and is only an announcement of intention. However, with rapidly rising numbers, it is vital that the humanitarian aid reaches those for whom it is intended. Therefore, I hope that the Minister and Her Majesty’s Government will focus on the need for international co-operation in delivering contributions and commitments. I hope that assurances can be given that the Government will use their good offices to try to ensure that desperately needed aid gets through and that our Ministers continue to show moral courage in vigorously and publicly urging all nations to fulfil their financial promises.
Lord Judd
My Lords, I, too, thank my noble friend Lady Blackstone for giving us the opportunity to consider this dreadful situation. First, I make a plea that we take this opportunity to express our solidarity with the front-line humanitarian workers who are doing so much on behalf of the international community. They are often very courageous people who deserve our full-hearted support.
I underline what has been said. If one is looking for an example of collective international cynicism, one has to look no further than at what has happened with the promises of assistance in this grim situation. To have had offered what amounted to some $1.5 billion of assistance at the recent conference in Kuwait and to now find the UNHCR telling us that only $200 million has been made available is a dreadful comment on us all. We need clear reassurance from the Government about what they are doing to make people live up to their reputations. It is little wonder that the cause of cynicism—if it is a cause—spreads so widely in the international community.
Dealing with refugees on this scale is, of course, highly complex. Specific elements arise within the general problem such as the acute needs of the elderly and those with physical and mental disabilities. Specialist support is crucial for people in those categories. There is also the whole issue of psychological trauma, particularly of children. I frequently think that in refugee situations around the world we give far too little attention to the assistance and support that can be provided for the psychiatric and psychological dimensions of the problem.
My noble friend rightly referred to the difference between the refugees in camps outside the country and those in more difficult, sometimes very distressing, situations who are not in camps. We have to ensure that whatever is being done in mobilising assistance is reaching and supporting both communities. In the middle of all this, we also have to remember that we must not engender a culture of dependency. We want to ensure that we are preparing people to return home. However, that is a big issue because how long will it take for any realistic expectations of return to be fulfilled? This issue is particularly acute in the spheres of education for the young and health. Turkey, Jordan, Lebanon and Iraq have played an immensely important part in keeping their borders open. However, they may well be tempted to close them at some point. We all have to think what that would mean. That, again, puts a responsibility on us all to make sure that we give them every possible support.
Perhaps the last point to be made in the time available is that all this is putting a burden on the people of those countries which do not have social provision of the highest order. Are we considering the weight that is falling on them? How can we support the programmes of the Governments in those countries to meet the needs of their own people in the context of this situation? That is important not only in humanitarian terms but to the long-term prospects of having a settled solution in the area, as antagonisms could very quickly become aggravated and escalate unless we look to the needs of the local populations.
Lord Warner
My Lords, I, too, congratulate my noble friend Lady Blackstone on securing this debate and I support everything that she said. I declare my interest as an adviser to the Council for European and Palestinian Relations, under whose auspices our parliamentary delegation recently went to Lebanon. The Syrian conflict is a huge humanitarian disaster with well over 4 million people, and growing, still within Syria’s borders needing humanitarian assistance, in addition to the at least 1.5 million people who have fled to neighbouring countries. The scale of the population displacement caused by this conflict must start to call into question the sustainability of some of the smaller neighbouring states involved, unless there is significant international help over a long period of time.
I want to focus briefly on Lebanon, which has received over 450,000 Syrian refugees across its lengthy border with Syria. That is more than 10% of its population. Let us imagine how we would feel if 6 million people suddenly appeared in the UK, considering the fuss that we have made about a relatively small number of eastern Europeans coming into this country. Around 10% of the people coming across the Lebanon border at the rate of about 7,000 people a day are Palestinian refugees. They are fleeing from their camps in Syria, which have been bombed by Bashar al-Assad’s military. It is very difficult to explain to them why a no-fly zone was appropriate in Libya but is not appropriate in Syria.
The plight of these refugees, especially that of children, is heartbreaking. Most of them are fleeing across the border with little more than the clothes that they are standing up in. Lebanon, which has considerable political and economic problems of its own, as has already been mentioned, is paying a huge political and economic price for keeping its borders open—and, one must say, pretty much welcoming these people into their country in many ways. It is asking its own population for the most part to host these people. They call them guests, not refugees, and there are relatively few refugee camps into which these people are moving and living.
What we saw in Beirut when we visited the city were families of 20 to 30 people living in two or three rooms in bombed buildings that are open to the elements, with little access to water or toilet facilities. They sleep in shifts because there is not enough space for them to sleep at night. They are struggling with exorbitant rents, sometimes $500 a month, which is an enormous sum for these people. It is charged by what I can only describe as racketeering landlords, and there is a lack of food, clean water and medicines. Some have untreated wounds and illnesses. Many are groups of vulnerable women and children with few, if any, accompanying working-age men. Where there are men, they are forbidden by local labour laws from working. Even in the well run volunteer organisation camp that we visited, where the accommodation and facilities are less primitive, dangerous electricity systems and inadequate sanitation present their own hazards on top. The meetings that we had with UNRWA on our visit were less than encouraging. Many of the countries that pledged money at the January Kuwait summit have simply not followed through with the cash.
I do not have time to go further, so I should like to close by posing a couple of questions for the Minister. Are the Government satisfied that all the pledges made at the Kuwait summit are being delivered in terms of hard cash for UN relief agencies to use for Syrian refugees? If not, what action will they take with their international colleagues—with a particular focus, I have to say, on the Gulf states, which do not seem to have delivered on the promises that they made? Do the Government accept that the population displacement caused by the Syrian conflict is likely to prove permanent in many individual cases? What discussions do they contemplate having with international partners on this issue, particularly with regard to Palestinian refugees, many of whom have been subject to multiple displacements? We need to engage with these serious issues in a more strategic manner than we have been doing so far.
Lord Collins of Highbury
My Lords, I too thank the noble Baroness, Lady Blackstone, for tabling today’s Question. As we have heard in this debate, there is an escalating humanitarian crisis in Syria. The situation is spiralling out of control, leaving relief agencies overstretched and struggling to cope. I thank all my noble friends for their first-hand accounts of the situation in Syria and neighbouring countries.
The two most strategic issues are, first, the need for longer-term funding to enable an effective humanitarian response and, secondly, as my noble friends have pointed out, the need for increased support for national authorities in neighbouring countries. DfID has recently announced additional UK humanitarian funding for the response in recent weeks, which front-line agencies estimate will last approximately through to the summer. That is welcome, but it has become increasingly clear that this is not a short-term crisis. Longer-term funding for the host government authorities is necessary to ensure that their national infrastructure does not collapse under the refugee burden. As we have heard from the right reverend Prelate and my noble friend Lord Warner, the refugee influx into Jordan now constitutes 6% of Jordan’s population. Some estimates suggest that up to 1 million may have arrived by the end of this year.
Support for the host government capacity in Lebanon has been mooted as an element of the next UN appeal, to be announced on 28 May for the period June to December this year. I understand that DfID has also seconded one staff person to a government ministry in Lebanon to assist in liaising with the UN system on the humanitarian response. It is possible that other steps are being taken that I am not aware of, but support for the host Government has not featured in a serious way in the UN-led humanitarian strategy for Jordan, and that needs to change.
I have a number of specific points and questions to put to the Minister in respect of these key elements of the strategy. What steps will DfID take to provide longer-term funding to enable a more effective humanitarian response to what is proving to be a long-term crisis? Can DfID ensure that its future funding pledges will allow for multi-year programming by agencies, and use its influence to encourage the UN system and other donors to shift beyond the current short-term six-month timeframes?
What steps will Her Majesty’s Government take to increase support to host government authorities in neighbouring countries to cope with the refugee influx? Will there be a particular focus on supporting health services, water sanitation and education, on addressing the needs of the host communities and, as we have hard from my noble friends, on addressing the rising tensions between host communities and refugees?
Baroness Northover
My Lords, I thank the noble Baroness for securing this debate. The scale of the humanitarian crisis in Syria and the region has reached catastrophic proportions. We already have a protracted humanitarian emergency. While the suffering of ordinary people increases, humanitarian operations on the ground are becoming ever more constricted, as we have heard from noble Lords.
When the noble Baroness, Lady Amos, briefed the UN Security Council last Thursday, she said:
“We are approaching a point of no return”.
The international political agenda must now refocus itself on the humanitarian response. Without this, the human suffering will only worsen and the threat to the stability of the region will be ever more severe, as noble Lords have so clearly flagged up. My noble friend Lady Falkner and other noble Lords portray a very chilling and bleak picture.
More than 70,000 people have died. Some 10 million people—half of Syria’s population—could be in need of assistance by the end of the year. The commission of inquiry has found evidence of war crimes and crimes against humanity. Children have been murdered, tortured and subjected to sexual violence. The long-term implications of such horrors are huge.
The right reverend Prelate has noted the effect on the Christian population. Minorities often suffer disproportionately in these situations, as we are well aware.
The humanitarian situation is now desperate, but it could rapidly worsen should chemical or biological weapons be deployed on a large scale. The implications of the usage of such weapons, accidental or otherwise, are extremely serious. Such weapons usage could lead to large numbers of critically ill persons as well as causing major population movements across the region, as noble Lords have flagged up. All parties to the conflict must recognise the seriousness of the threat posed by these weapons. We are increasingly concerned that there is evidence of the use of chemical weapons in Syria, and we press the UN to investigate further.
The crisis is having a devastating impact on the region. More than 1.3 million refugees have now fled Syria for other countries in the region, and the UN predicts 4 million refugees in the region by the end of the year. This is putting unprecedented strain on the Governments and communities so generously hosting refugees. We are well aware of the effects on those countries. That is why aid is targeted to them, in answer to the noble Lord, Lord Collins. Aid is often given in a way that supports not only the refugees but their hosts as well.
The right reverend Prelate was right to say that the system is near breaking point. Prior to the refugee influx, Jordan was facing its own internal domestic challenges. There are now almost 500,000 Syrians in Jordan, with approximately 2,000 more arriving each day. While media images often show refugees living in camps, such as Zaatari, the majority of refugees live, as noble Lords have emphasised, in Jordanian communities, which were already resource-constrained. Tensions are already beginning to rise. Last weekend saw the most serious violent incident to date in the Zaatari refugee camp.
Lebanon is hosting 428,000 refugees. The projected refugee caseload by the end of the year is 1 million. As the noble Lord, Lord Warner, flagged up, that means that one in four people in Lebanon will be a Syrian refugee. The cost to the Lebanese economy is no less worrying. The response for July to December 2013 is expected to be $600 million. The refugee influx is also putting pressure on Lebanon’s delicate political balance. North Lebanon has already seen increasing levels of violence spilling over from the conflict in Syria.
Turkey and Iraq are hosting 291,000 and 133,000 refugees respectively. Egypt is now hosting more than 50,000 refugees. As the right reverend Prelate noted, Egypt has also hosted Sudanese refugees. As numbers increase, so too does the need for the international community to respond.
The noble Baronesses, Lady Blackstone and Lady Jay, and the noble Lord, Lord Warner, were right to flag up the position of the Palestinians. The impact on Palestinian refugees is acute. Of a pre-crisis population of 500,000 Palestinian refugees in Syria, 400,000 are now in need of urgent assistance. A further 40,000 have fled to Lebanon and 5,000 to Jordan. As the noble Baroness, Lady Blackstone, highlighted, before the crisis Lebanon was already hosting close to 500,000 Palestinian refugees, and Jordan was hosting 2 million, in very difficult circumstances.
Countries hosting refugees must not be left to shoulder the responsibility alone. The UK has been and is at the forefront of international humanitarian efforts. We have provided more than £141 million in humanitarian funding to provide vital food, water and medical care to hundreds of thousands of people in Syria and across the region. We are very close to the top of the table in terms of our national input. We are assessing the level of support needed for the next two years, looking to the longer term.
I assure noble Lords that the United Kingdom is fully committed to the pledge that we made in Kuwait. Aid will go to the United Nations World Food Programme, the United Nations children’s fund, UNICEF, and the World Health Organisation to provide lifesaving assistance. We are also working tirelessly to encourage others to move from the pledges that my noble friend Lord Selkirk mentioned, through commitment to contribution. At a time of global financial constraint, the longer-term need to do so is self-evident.
Some £56.8 million of UK funding is going to support the refugee response in neighbouring countries. We are seeking to assist those host countries because we are well aware of the pressure on them. We are targeting some of the most vulnerable refugees. Our aid includes psychosocial help for people who have experienced trauma, including sexual violence, as well as £5 million to the United Nations Relief and Works Agency to support Palestinian refugees affected by the crisis.
We are supporting vulnerable host communities. For example, in Lebanon we are funding the delivery of clean water, undertaking upgrades to sanitation infrastructure and providing schooling in the Lebanese host communities. That addresses the points made by the noble Lord, Lord Collins. I reiterate to the noble Lord, Lord Judd, that we realise the importance of supporting children who have been traumatised.
Humanitarian aid to the region is only one part of the story. In Jordan and Lebanon the UK is also providing support through the Arab Partnership to support political and economic reform, as well as funds through the Conflict Pool to tackle the drivers of conflict and provide support, where appropriate, for security-sector reform. However, the levels of humanitarian funding remain woefully inadequate. We continue to lobby donors to deliver on the pledges made at Kuwait. I can tell the noble Baroness, Lady Blackstone, that the UN has still received only 52% of the funding that was pledged. We are working very closely with other countries. Last week Kuwait fully translated its $300 million pledge from the Kuwait conference. That is an update since I answered the Question of the noble Lord, Lord Selkirk, recently. We continue to use all channels to lobby those who have not yet committed their pledges.
In order to meet needs in the long term, the international community must radically increase the levels, timeframe and predictability of funding for its response, including by further engaging development actors such as the World Bank, the EU and the International Monetary Fund.
The noble Baroness, Lady Blackstone, asked how the funds were being distributed across the region. I can supply a lot of detail if needed, but will outline a few points now. For the UN appeal for Syria in the region there is a $1.5 billion contribution, with $0.5 billion going to Syria, $0.5 billion to Jordan, and $0.5 billion divided between Lebanon, Turkey, Iraq and Egypt. The UK and the UAE met with UN representatives in the Gulf recently to discuss closer co-operation over Syria. We constantly discuss with the Gulf states the importance of working together and with the UN in this area, something that noble Lords flagged up.
Access for humanitarian agencies operating inside Syria is indeed increasingly constrained, as the noble Lord, Lord Judd, emphasised. They are facing considerable bureaucratic hurdles as well as enormous insecurity. The noble Lord is right to commend the enormous bravery of those working on the front line in Syria. The UK is calling on the Government of Syria to remove the bureaucratic barriers as a matter of urgency, and are calling on all parties in Syria to take immediate steps to ensure that humanitarian agencies have safe, full and unimpeded access to deliver lifesaving aid to those in need by the most effective routes.
I understand the frustration expressed by my noble friend Lady Falkner, who urges that we should consider no-fly zones and selectively arming. This is an extremely challenging situation. We believe that political transition has to be the best way to end bloodshed in Syria. However, in the absence of a political solution, it is right that we do not rule out any options. The use of chemical weapons would force us to revisit our approach but these are not straightforward or easy decisions, as my noble friend knows. I also point out to her that humanitarian enclaves in other contexts have not always operated to protect people; she will be acutely aware of that. At a minimum, we urge all parties to the conflict to respect international and humanitarian law and point out the consequences that we see through the International Criminal Court for those who do not do so.
We fully recognise the importance of this terrible conflict and the enormous challenges in tackling it. Noble Lords have rightly highlighted the particular destruction and devastation of civil war. We seek a negotiated end to the conflict and continue to work with UN Security Council members in pursuit of this. I assure noble Lords that we will continue to monitor closely the situation in Syria and the region. We will remain, as we have been thus far, at the forefront of the international humanitarian response.
House of Lords
Prisoners: Indeterminate Sentences
(11 years, 7 months ago)
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Lord Lloyd of Berwick
To ask Her Majesty’s Government what further steps they will take to release prisoners serving indeterminate sentences for the protection of the public in the light of the recent decision of the European Court of Human Rights in James, Wells and Lee v UK.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the European Court’s judgment did not find sentences of imprisonment for public protection to be unlawful. Therefore, it remains for the Parole Board to determine whether to direct the release of an IPP prisoner once he has completed his tariff. The National Offender Management Service continues to improve opportunities for IPP prisoners to progress towards release.
Lord Lloyd of Berwick
The noble Lord will know that currently more than 3,500 IPP prisoners have passed their tariff date and are waiting to come before the Parole Board. Does he accept that, at the current rate of release on licence, which is running at about 400 a year, it will be nearly nine years before the backlog is cleared? If so, is there not an overwhelming case for the Lord Chancellor to exercise the powers he was given under Section 128 of the 2012 Act to vary the release test to make it easier for these prisoners to satisfy the Parole Board?
Lord McNally
My Lords, the noble and learned Lord’s figure on the release of IPP prisoners is roughly correct; I do not think it is until Thursday that we release the full figures, but his estimate is not far out. That compares with 300 releases in 2011, 97 in 2010 and 53 in 2009. I hope he will acknowledge that the abolition of IPPs in LASPO and the greater flexibility that we are now employing in trying to manage the IPP sentences are going in the right direction. I acknowledge that it is a slow process. I will take back to my right honourable friend the Lord Chancellor the noble and learned Lord’s point about the power that was given in the LASPO Act, but even if that power were exercised the Parole Board would have to take public safety into account in making its decisions.
Lord Thomas of Gresford
My Lords, at its conference in 2012 the Prison Governors Association passed a motion overwhelmingly welcoming the ending of what it described as the “iniquitous” IPP system. It also said that unless some action is taken either to resource appropriate interventions to reduce perceived risk or to review the Parole Board criteria on what constitutes risk to the public, existing prisoners will face disproportionately long sentences. What action have the Government taken?
Lord McNally
My Lords, I think the key word is “risk”. The fact that these prisoners were given IPP sentences indicates that it must have been in the mind of the judge imposing the sentence that they posed a significant risk to society that had to be dealt with before they could be considered for release. That was the intention behind IPPs and that must remain uppermost in our minds when deciding the future of these prisoners. However, we are bringing in accredited courses, which may help to make the point that they are available for these prisoners. Other interventions such as work, education and employment may also provide evidence of reduced risk. NOMS is investing in interventions that have the most beneficial impact in reducing risk, and priority for those programmes is given to IPP prisoners.
Lord Wigley
Does the Minister accept that these prisoners are in a totally invidious position, a Catch-22 position, in that they have to undergo rehabilitative courses in order to be considered for eligibility for parole, yet the vast majority of them have not been offered such courses? Does what he said a moment ago about new courses mean that a substantial number of these prisoners will now be offered them?
Lord McNally
My Lords, within the constraints that we are having to operate in we are trying to introduce new courses. I fully accept that one of the reasons we abolished IPP is that it contained that Catch-22 whereby you had to fulfil certain courses, which may not be available, to qualify for release. I believe that NOMS is doing its best to bring in new systems and that there is greater flexibility in qualifying for release. However, I go back to the point that we are dealing with men who were sent to prison because the judge who sentenced them judged that they posed a serious risk.
The Lord Bishop of Liverpool
My Lords, one of the problems is that when a prisoner is transferred to another prison, they find that there is no accredited course in that prison. Who has the specific responsibility for ensuring that when a prisoner is transferred, there is an accredited course in the prison to which that prisoner is transferred?
Lord McNally
I understand that almost all IPP prisoners now have a managed programme to help them prepare for release. That should be part of sentence planning. But, again, I freely acknowledge that in some cases prisoners have been moved for other reasons and then find that they cannot complete the relevant courses. We are trying as best we can to iron out of the system what the noble Lord referred to as a Catch-22 situation so that prisoners can qualify, but to leave with the Parole Board the overriding assessment of whether they are suitable for release or whether a risk remains.
Lord Beecham
My Lords, what is the Government’s estimate of the number of prisoners to whom the judgment in the European Court of Human Rights case of James, Wells and Lee v UK applies? Have the Government estimated the cost of providing sufficient resources to comply with the requirement to ensure that prisoners have an opportunity to progress and to be properly assessed for release on licence?
Lord McNally
I am not sure of the number of prisoners to whom the judgment applies, but cases are being taken. It may be of interest to hear that two of the three prisoners involved in that case are now back in prison due to breaching their terms. We are being very careful to make sure that the system is flexible enough and effective enough to allow prisoners to earn—that is the reality of it—their release. However, we have to consider this issue in the context of prisoners who were given this sentence, when it existed, because they posed a threat to the community. It is for the Parole Board to assess whether they are fit for release.
Judicial Review
Baroness Whitaker
To ask Her Majesty’s Government how their proposed new policy on judicial review ensures the right to a fair hearing in respect of time for individual applicants to prepare and lodge their cases, and the opportunity for an oral permission hearing in all circumstances.
Lord Ahmad of Wimbledon
My Lords, I begin by congratulating the noble Baroness on her impeccable timing because today the Government published their response to the consultation on reforming judicial review. The response sets out changes to the judicial review procedure which the Government intend to take forward. As set out in the response, we believe that these changes to the fee structure, oral renewals and time limits will help to reduce the burden of judicial review while, most importantly, maintaining access to justice, the rule of law, and the right to a fair hearing.
Baroness Whitaker
My Lords, the consultation paper refers to problems with challenges to large planning developments. Why should individual applicants, often unfamiliar with legal processes or perhaps not even very good at reading and writing, like some Gypsies and Travellers, pay the price with so much less time? Secondly, does the Minister agree with Lord Justice Laws when he said,
“that judges … change their minds under the influence of oral argument”,
is central to the system, bearing in mind that more than 60% of all hearings are successful? Where is the justice in reducing them?
Lord Ahmad of Wimbledon
The noble Baroness is right to raise the important issue of vulnerable groups and people who represent themselves. However, a total of 11,359 applications were lodged in 2011, of which only 144 were successful. I hear what the noble Baroness says, and I am sure she will appreciate that for every application made in written form it is down to the judge to make an adjudication on whether it has merit to go forward. Even if the case is decided in the negative, the individual still has a right to take the matter forward to the Court of Appeal.
Lord Pannick
My Lords, will the Minister draw the attention of the Lord Chancellor to the oral evidence given to your Lordships’ Constitution Committee on 13 February by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger of Abbotsbury? I refer in particular to where he said:
“If you have shorter time limits, the risk is that people start proceedings when maybe, if they had more time to think, they would not. There would be many more applications for extensions of time and you might find that the bright idea of cutting time limits turns out to increase the amount of litigation rather than decrease it”.
Does the Minister share these concerns? I declare my interest as a practising barrister.
Lord Ahmad of Wimbledon
The noble Lord always comes to these matters with great wisdom and experience, which I fully acknowledge. Various groups, including the judiciary, were fully consulted in putting forward the response. The senior judiciary who were consulted included the president of the Queen’s Bench Division, the Master of the Rolls, the vice-president of the Court of Appeal, the Civil Division and Lord Justice Richards, the deputy head of Civil Justice. As I said earlier, in the case of such appeals the judge is there to decide if an extension is required to the time period. The noble Lord may have an opinion that this may extend the period, which his quote highlighted, but it is important that the right thing is done. If the judge decides to extend the time, so be it.
Lord Marks of Henley-on-Thames
My Lords, I declare a similar interest. The Government propose withdrawing the right to an oral hearing in cases deemed on paper to be totally without merit. Does my noble friend accept that unrepresented applicants often find it very difficult to express their cases adequately on paper, and that it is only at oral permission hearings that judges can sometimes discern from such applicants an arguable case which was not apparent on paper? Will the Government consider limiting the restriction of the right to an oral permission hearing to legally represented applicants?
Lord Ahmad of Wimbledon
I thank my noble friend for raising this concern, but I believe that the risk is somewhat limited. I am sure that many members of the judiciary both in here and those practising outside will agree that the test of “totally without merit” is something that is well understood by the profession and is, indeed, applied by judges. This reform applies only to the weakest cases, and as I said in a previous response, if there is still an issue, the right to apply to the Court of Appeal remains for the individual.
Lord Beecham
My Lords, does the Minister agree with the observation of the Master of the Rolls, Lord Dyson, that there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review? When will the Government publish their response to the consultation on their proposals, and can the Minister indicate whether the view of consultees that has emerged from the consultation on the question of shortening the time limits for procurement and planning cases has been noted?
Lord Ahmad of Wimbledon
First, I agree totally with the noble Lord. The point of judicial review is to hold the Executive and public bodies to account, and that is a principle to which the Government are utterly committed. I have referred already to the issue of time extension. If an extension of time is required, the judge can grant it. It is important to highlight three key points around these changes. The reduction in time limits on planning and procurement, the introduction of fees and the dismissal of decisions that are totally without merit were all referred to the judiciary and, indeed, carried their support. Matters were raised in the consultation which the judiciary felt were not right to take forward; the Government have listened and are not doing so.
Lord Bach
My Lords, linked to the issue of judicial review is the idea of a residence test, which is presently being consulted on. If put into effect, that residence test would mean that someone here lawfully but who had not been here for 12 months or more would not be entitled to legal aid in civil actions, presumably including judicial review, however overwhelming their case might be. Does the Minister agree that such a proposal goes against the traditions and principles of British justice and is more akin to the traditions of more unsavoury judiciaries?
Lord Ahmad of Wimbledon
I do not agree with the noble Lord. It is right to say that our justice system is one of the best in the world, demonstrated even in cases such as that of Abu Qatada. Here is a man who does not believe in our democracy, who does not believe in the freedoms our country stands for, and who takes a noble faith, hijacks it and then presents it in his own erroneous way. Even then, our justice system stands up for him. That is British justice at its best and those rights are protected within judicial review. The noble Lord also noted that these matters are currently out for consultation. The whole issue of legal aid for anyone seeking to apply for it is to protect the vulnerable. That remains the central aim in terms of how the Government will continue to support such cases.
Crime: British Victims Abroad
(11 years, 7 months ago)
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what support they give to British citizens, and their families, who are victims of serious violent crime abroad.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the FCO will assist any British national who gets into serious difficulty overseas. The victims of violent crime are especially vulnerable and get urgent and priority attention. We offer support to help to address both the immediate effects of violent crime and the longer-term needs of the victims and their next of kin. We also work closely with partners who can provide specialist long-term support and advise us on our services.
Lord Kennedy of Southwark
My Lords, British citizens and their families who are the victims of serious violent crime abroad face considerable difficulties getting criminals brought to justice and in dealing with the aftermath of the crimes that have been committed against them. Language, cultural, judicial and other differences make the situations they find themselves in all the more difficult. Will the noble Baroness agree to meet me and Maggie Hughes, the mother of Robbie Hughes, who was the victim of such an assault, to hear at first hand the difficulties that this and other families have experienced with a view to improving the situation for victims and their families?
Baroness Warsi
The noble Lord makes an important point. It is always when British citizens travel overseas and find themselves in these distressing circumstances that expectations are at their highest. Some 56 million people from this country travel overseas, but only tens of thousands require consular assistance, and within those the number of very serious cases is around 60. It is important that we are quite open about what help we can provide and what support we can give. That usually takes the form of providing information about the local police and legal services, while sometimes we will attend first appointments with a list of local lawyers and victim support services. We work with local NGOs to provide support for families on the ground, but we have to be honest about what we are obliged to provide and what it is that we can provide. We have to be clear and transparent about that when providing information about travelling overseas.
Lord Dholakia
My Lords, does the same position apply in relation to British citizens who are dual nationals?
Baroness Warsi
That is an interesting issue which we face regularly, most often in relation to the case of forced marriages where young girls are taken overseas. They are, by default, dual nationals because of their heritage and the origins of their parents. Thankfully, we have quite good relations with many countries where our citizens would be considered to be dual nationals, but strictly, when that national is in a country for which they also hold the nationality, they are citizens of that country and that provides us with great challenges.
Lord Triesman
My Lords, I appreciate the difficulty in helping victims in some jurisdictions. For good reason, we do not have missions and consular services everywhere. However, this gives little comfort to individuals in frightening circumstances where there are language barriers or to their families. Can the Minister give them more comfort? What targets do we ask other Governments to observe in notifying us of violent crimes committed against our citizens abroad? What are our consular services’ targets for responding to those individuals and will the Government publish, country by country, the numbers of violent crimes committed against our citizens?
Baroness Warsi
The figure in relation to the number of murders and violent deaths that have occurred in the past year is 60. I am not sure whether that is broken down by country. It probably is, and if so, I will certainly make it available to the noble Lord. There are some very clear guidelines under the Vienna Convention as to the obligations that states have about notifying us and doing so within a specific timeframe when our citizens are caught up in these matters. Going back to the main issue, it is important that we are very clear about what support we can give. We are very clear about the travel advice we give to people when they go to many places where we may not, for example, have embassies or high commissions and that we then support those who are the most vulnerable.
Lord Avebury
My Lords, further to the question of my noble friend Lord Dholakia, is it not correct to say that the Vienna Convention on consular relations prohibits our consuls, or the consuls of any other country for that matter, from making representations on behalf of their citizens who are also citizens of some other country?
Baroness Warsi
It is a real issue, but I can also inform the noble Lord that there are many occasions where citizens are dual nationals, but we still make representations to those Governments, even though they happen to be dual nationals within that country.
Lord Elystan-Morgan
My Lords, is it not the case that the murder of a citizen of the United Kingdom is triable in the United Kingdom wherever that murder occurs? What efforts are made in such cases to bring the perpetrators of such offences before British courts?
Baroness Warsi
The view of the Government and indeed of successive Governments has been that a crime has to be tried in accordance with the law of the land in which that crime was committed. It would be just as unusual for countries to make a request to us to have their nationals who commit murder in this country to be tried back in their home country. Therefore, it is right that nationals are tried in the country in which they are caught.
Lord West of Spithead
My Lords, will the Minister wish the English nation well on this lovely sunny St George’s day?
Baroness Warsi
It gives me great pleasure to wish the English nation well on this glorious day.
NHS: Leeds General Infirmary
(11 years, 7 months ago)
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Baroness Eaton
To ask Her Majesty’s Government what was the extent of their involvement in the decision to suspend surgery at the Leeds General Infirmary Children’s Heart Unit.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government did not play any role in the decision to suspend children’s heart surgery at Leeds. By agreement, this was a local decision taken by the trust, in agreement with Sir Bruce Keogh, NHS England’s medical director, and the Care Quality Commission. The Government strongly believe that it was the right thing to do. It is absolutely right that the NHS should act quickly and decisively if there is any evidence that patient safety may be at risk.
Baroness Eaton
I thank the Minister for his Answer and for the concern that I know he shares for those who have been affected by the decision. We all wish to see the safest surgery possible for our children. The Minister quite rightly understands that specialist doctors and experts, not politicians, should be responsible for asking and answering questions of safety. In the particular circumstances of Leeds, however, a number of the experts—
Baroness Eaton
My question is coming. The experts in Leeds have been causing understandable concern because of their partiality and apparent vested interest. In Bristol and Birmingham, children’s heart units have recently had mortality alerts and 14 NHS trusts are under investigation. Will the Minister explain why surgery has not been suspended at any of those trusts? Will he also explain why NHS England has chosen to spend resources appealing the decision of the High Court judge, who called the Safe and Sustainable review of children’s heart units flawed, when the decision for the Independent Reconfiguration Panel and the Secretary of State is imminent?
Earl Howe
My Lords, my noble friend raises quite a large number of points. I simply say to her that in regard to Leeds, which is the matter on which I have been briefed, the decision to suspend surgery was taken because concerns had been raised from a variety of sources about the safety of surgery at the unit. Mortality data were supplied to the National Institute for Cardiovascular Outcomes Research with significant flaws, and until those flaws had been rectified, it was impossible to be sure that the trust was operating within acceptable mortality thresholds. Those mortality concerns have, I understand, been resolved, which is why low-risk children’s cardiac surgery has been resumed at the hospital. However, NHS England’s appeal on the Safe and Sustainable review—which, I emphasise, is quite separate from the events of late March and early April—has to be a matter for NHS England. The review of children’s heart services was an NHS review, independent of government, and if NHS England wants to appeal the decision and thinks that there are good grounds for doing so, that is a matter for it.
Baroness Howarth of Breckland
My Lords, does the Minister agree that the people most affected by this are the children and many of the families who do not understand and cannot comprehend what is going on at the moment across these services? I declare an interest as the patron and trustee of Little Hearts Matter, which deals with hundreds of children who have half a heart and therefore all have surgery across the country. The Government may not have a direct interest in dealing with this matter but what are they going to do to make sure that the health services reassure these families that wherever they get surgery it will be safe for their children?
Earl Howe
My Lords, children’s heart surgery has been the subject of concern for more than 15 years. Clinical experts and parent groups have repeatedly called for change, and there is an overwhelming feeling in the NHS that the time for change is long overdue. The review that has taken place was about making sure that children’s heart services are as good as they possibly can be, and that has to be the message to the parents involved. It is of course an extremely complex issue but it is generally accepted that concentrating surgical expertise will deliver better outcomes for the children concerned. In view of the legal proceedings, it is very difficult for me to go any further than that at the moment.
Lord Warner
My Lords, if NHS England decides, under its new responsibilities, to undertake and control the specialised commissioning functions within the NHS, and if it chooses to implement the McKay panel’s recommendations on paediatric surgery, can the Minister say whether they would accept that judgment by NHS England or whether they would seek to overturn it?
Earl Howe
I take the noble Lord’s question to mean: would the Government accept that decision? Yes. This is a matter for the health service to determine. As I mentioned earlier, the Safe and Sustainable review was an NHS review. The Government and Ministers were not in any way involved in it, and that is appropriate. Therefore, the answer to the noble Lord’s question is that the Government would stand back from any such decision.
Lord Shutt of Greetland
My Lords, it is clear that murky internal health politicking has been going on here. However, the underlying question is: why are the Government determined to deny the people of Yorkshire a children’s heart unit when Yorkshire’s population of 5.3 million is similar to that of Scotland, Denmark and Finland, and is larger than Norway and Ireland? Yorkshire is double the size of the north-east of England, and the Government are happy to see that region locally served.
Earl Howe
I say to my noble friend with great respect that the premise of his question is incorrect. The Government have not taken a role in this matter. As I said to the noble Baroness, Lady Howarth, and to the noble Lord, Lord Warner, this is a matter that the NHS itself has led. There is no agenda by the Government at all, apart from our desire to see the best possible children’s cardiac services provided in this country.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests. Would the noble Earl accept that Sir Bruce Keogh has an outstanding record in the health service in improving outcomes from heart surgery, and therefore he has to be listened to with a great deal of respect?
On the more general issue of the reconfiguration of services, on which NHS England has promised to become much more assertive—which, I am sure, is welcome—is the noble Earl concerned that the Office of Fair Trading and the Co-operation and Competition Panel seem to be intervening in sensible reconfiguration decisions on the spurious basis that they impact on competition? Will he tell these bodies to desist?
Earl Howe
My Lords, if the noble Lord can supply me with some examples, of course I will look into them. I remind him that tomorrow we are debating a set of regulations that bear on this very question and I shall have plenty to say on that occasion, which I hope will assuage his concerns.
Baroness Masham of Ilton
My Lords, is the Minister aware that it has been really splendid to witness the Members of Parliament from all over Yorkshire supporting their constituents? Will the Government listen to them?
Transport for London Bill [HL]
Public Service Pensions Bill
(11 years, 7 months ago)
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“(c) the Defence Fire and Rescue Service”
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 78 for the following Reason—
Lord Newby
That this House do not insist on its Amendment 78, to which the Commons have disagreed for their Reason 78A.
Lord Newby
My Lords, your Lordships’ House now returns to the Public Service Pensions Bill, on which there remains one outstanding issue. The other place has invoked parliamentary privilege on the amendments made by this House that sought to reduce the normal pension ages for fire and police workforces employed by the Ministry of Defence.
I will explain in a moment the reasons why the Government cannot simply agree to give these workforces a normal pension age of 60. First, I put on record that I recognise the arguments that have been made here and elsewhere. I have met members of these workforces to discuss their position, and there is no question that they deliver an extremely important service, often in demanding and dangerous circumstances. However, sympathy for these individuals should not lead to our oversimplifying the issue that we are discussing. The debate today is over just one design element of their pensions, which in turn forms just one element of their overall remuneration and employment package.
We have heard the argument that these individuals are identical to their local authority counterparts. But these workforces are subject to separate working practices, terms and conditions and, specifically, pensions entitlements. These workers receive different pay, pay a much lower level of contributions, have access to a compensation scheme, unlike their local authority counterparts, and receive different allowances—for example, when they work abroad.
We must recognise that the proposal to reduce the retirement age involves substantial changes in their terms and conditions. Those changes to date have not been subject to thorough consideration or the proper process. That is why we should not attempt to conduct detailed discussions here about what the changes may look like. This is not just about normal pension age; there is much more to be explored, and there are several interrelating factors that must continue to be discussed between the parties. It is right that those discussions take place outside the legislative process, and we do not have to resolve this in the Bill. My colleague, the Economic Secretary, said yesterday in the other place that further primary legislation is not necessary in order to do so.
The Ministry of Defence has already committed to discussing this issue further. This is the right approach. As we have these discussions, we cannot shy away from discussions about the costs. Reducing the normal pension age of those workforces to age 60 could create extra expenditure for the Exchequer of up to £10 million in every year that the scheme operates. That is why these two amendments are subject to the Commons financial privilege. These costs would have to be picked up by somebody—either the taxpayer, possibly at the cost of front-line MoD services, or extra contributions from the members of these workforces. The current situation is that dialogue is already under way between the DFRS, the MDP and the MoD. The MoD has written to the representatives of the members of these forces and offered to discuss how a normal pension age of 65 might be maintained when the new schemes come into force. The first step has, therefore, already been taken, and we will keep up the momentum in the coming weeks and months.
I realise that there is some concern about how long these negotiations might take, which was reflected in the Commons yesterday. While I do not wish to tie the hands of either the unions or my colleagues at the Ministry of Defence, I should think that working towards agreement over the next 12 months is an achievable goal. We are definitely not seeking to kick this issue into the long grass. Colleagues in the other place also wanted assurance that if—I stress that this is very much an “if”, not a “when”—the MoD decided that a reduction in its current NPA was appropriate, the Bill would be flexible enough to allow this. I can reassure the House that this is indeed the case. This Bill is framework legislation. This is usually the case in the public service pension arena and, as such, a number of things are possible within the framework of the Bill that do not require amendments to primary legislation. I am, therefore, happy to repeat that if the Government decided that it would be appropriate for some or all of these workforces to be able to access an unreduced pension before normal pension age, there are ways that this change can be delivered using only secondary legislation.
The opposition amendment would effectively require a review of the effect of this Bill on the Ministry of Defence fire and police services. In particular, it would require the Government to have regard to impacts on the health and well-being of the individuals affected; the ability of the MDP and DFRS to meet the Ministry of Defence’s statements of requirement; and early retirement statistics in these forces. I have already stated that the Ministry of Defence is engaging with these forces to look at their pension ages in the new schemes. These are exactly the kinds of factors which they would look at in doing so. As we had already intended to look at this issue again with these workforces, I am happy to accept this amendment from the Opposition, and the Government will support it. I hope that seeing this provision on the face of the Bill will give the forces and Members opposite the reassurance they need that the review will indeed be carried out.
As is normal practice, a few elements of wording will need to be ironed out. The Government will look to make these changes in the other place when the Bill returns there. Allow me to reassure the House that any changes to the wording will be purely to ensure that the provision works properly. However, the Government can today accept the substance of the amendment, and I am grateful to the noble Lord, Lord Eatwell, for taking this very constructive approach to the remaining issue in the Bill. I invite the House to accept the decision of the other place and also to accept the amendment. I beg to move.
Lord Eatwell
That this House do not insist on its Amendment 78, to which the Commons have disagreed for their Reason 78A, but do propose Amendment 78B in lieu.
“Defence Fire and Rescue Service and Ministry of Defence Police Capability Review
(1) The Secretary of State, in conjunction with the Secretary of State for Defence, will, within six months of this Act coming into force, prepare and lay before both Houses of Parliament a report setting out the Government’s assessment of the impacts of this Act on current and future members of the Defence Fire and Rescue Service and current and future members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987.
(2) A report under subsection (1) will include, but not be limited to, consideration of the following
(a) the impacts on the health and wellbeing of members of the Defence Fire and Rescue Service and members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987;
(b) the ability of the Defence Fire and Rescue Service and members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987 to meet the Ministry of Defence's statements of requirement of these personnel;
(c) the number of members of the Defence Fire and Rescue Service and members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987 taking early retirement, the consequences of early retirement for those members and the costs to the taxpayer of such members taking early retirement.”
Lord Eatwell
My Lords, I beg to move the manuscript amendment on the Marshalled List. We were told last night—that is to say, at the last minute—that the Government intended to assert financial privilege over our attempt to achieve fairness for the members of the Defence Fire and Rescue Service and the Ministry of Defence Police. We have learnt that the Government know they have lost the argument when they assert financial privilege. However, it is worth examining what this financial privilege is being asserted over. The noble Lord quoted the possible cost to the Government as £10 million. We had the opportunity to take actuarial advice overnight and the figure is a maximum of £2 million. So the Government are asserting financial privilege over the magnificent sum of £2 million per year and are using that argument to prevent the debate on your Lordships’ amendments, which would have achieved fairness for Ministry of Defence firefighters and police by equalising their retirement age with those of other police and fire services.
The amendment I have tabled requires a review of the impact of these measures on the Defence Fire and Rescue Service and Ministry of Defence Police. We want to know the impact on the health and well-being of these members, particularly because there is substantial evidence that the vast majority of members of the fire service and police are required to retire before the age of 60, because they can no longer meet the Ministry of Defence statements of requirements for these personnel. In effect, they are stood down for health reasons already. What is striking is that the Government have not taken the cost of people retiring early through ill health into account in their calculations of the overall impact. Indeed, the cost calculations are simplistic in the extreme.
The other area that we are particularly concerned about is whether early retirement due to inability to meet exacting standards is taken into account in considering the settled retirement age. The noble Lord again raised this issue of fixing the retirement age of this group of workers at 65 and not letting it creep up in future years, as anticipated in the Bill. I hope that the Government will dismiss these thoughts from their mind and instead concentrate on achieving fairness. I refer the noble Lord to the speech made by my noble friend Lord Hutton of Furness when we considered this matter on Report. He stated that,
“this is fundamentally a matter of fairness”.—[Official Report, 12/2/13; col. 570.]
As noble Lords may remember, my noble friend also pointed out that if he had known about this anomaly when he produced his report on public service pensions, he would have included the MoD firefighters and police within his general recommendations for those who would have a retirement age of 60. My noble friend Lord Hutton told us that this was simply a mistake on his part and that he wanted the House to have the opportunity to correct that mistake.
I am grateful to the Government for accepting our amendment and our request for a review of the circumstances of MoD firefighters and police, but I wonder if the noble Lord could answer a number of questions for me. For example, have the Government sought the views of the heads of the MoD fire service and police force? What do the heads of these services actually think about the Government’s proposal not to equalise the retirement age of their men and women to the retirement age of other police and firefighters?
Moreover, the noble Lord made quite a point about the difference in conditions of the pension scheme that the MoD police and fire services are currently in and the pension scheme to which they might transfer. He referred to the Civil Service Compensation Scheme, to which they have access. How many times in the past two years have MoD firefighters and police accessed this scheme? Why did they do so and what has been the outcome of their application?
In moving this amendment, I seek to give this House the opportunity to debate once again, on a report by the Government, this particular anomaly in the Public Service Pensions Bill. We wish to be clear on the impact on the health and well-being of members of the Defence Fire and Rescue Service and the Ministry of Defence Police. We wish to be clear on the circumstances under which the firefighters and police meet, or fail to meet, the Ministry of Defence’s statement of requirements for its personnel. We also want to be clear on the cost to the taxpayer of the early retirement which has become such a standard characteristic of service in these professions because of the failure, through advancing years—which I understand, as I am sure many of us do—of the firefighters and police to meet the requirements of service.
Baroness Harris of Richmond
My Lords, I had not necessarily intended to participate in this debate, knowing that the noble Lord, Lord Eatwell, had put down an amendment which I wholeheartedly approve and agree to. I am very pleased that the Government have decided to accept it, especially after all the work that was done in trying to persuade them about the Ministry of Defence fire service and the Ministry of Defence police. I emphasise this point because it is tantamount to having made them accept that this really must be looked at again, and I think it was the work that was done in Committee in this House that made this happen. Like the noble Lord, Lord Eatwell, I was surprised to find that financial privilege had been put forward as the reason not to accept something a little stronger. So I can assure my noble friend the Minister that during the year that this amendment will be looked at, mulled over and digested, we will be looking very carefully to see the progress that is made and to make sure, through questions and other means, that we keep the Government’s feet to the fire.
Lord Whitty
My Lords, I join the noble Baroness in congratulating the Minister on his change of heart. He has in effect very graciously recognised not only the justice of the case that we on this side of the House, and the noble Baroness, Lady Harris, put in Committee, but that it is pretty absurd for the Government simply to claim financial privilege to resist an amendment that manifestly will bring justice and equity to an extremely special group of workers, putting them on the same basis as people who are doing almost exactly the same job but who are employed by other public sector employers.
I suspect the Minister had some difficulty with the Treasury and the Ministry of Defence in reaching this conclusion. I therefore doubly congratulate him on seeing it through and at least recognising the very difficult position we all find ourselves in. We cannot really resist the Commons claiming financial privilege, but we can ensure by my noble friend’s amendment that the Government think again about this and address the real issues.
I do hope, however, that the Government do not make a habit of using financial privilege to resist a principled amendment from this House that has a minimal cost even in the Government’s terms and, as my noble friend has said, that is probably actuarially inaccurate in any case. If the Government continue to do this, this House has some serious thinking to do about how seriously our amendments and our scrutiny are taken. However, I return to my congratulations to the Minister on seeing sense over this. I hope it is a precedent that will be followed by some of his other colleagues in future.
Lord Newby
My Lord, I am grateful to the noble Lord, Lord Eatwell, and other noble Lords who have spoken in this debate. I would just like to deal with the issue of financial privilege, because there is a widespread misunderstanding of how financial privilege works. Privilege is not determined by the Government. Privilege is determined by the Speaker in advance of debate. In this case, the classification of your Lordships’ amendment as being subject to the Commons financial privilege has been known for a month. Once an amendment has been classified by the Speaker as being subject to financial privilege, obviously the Commons considers whether to agree or disagree with each Lords amendment. If it disagrees, it must offer a reason. The only reason it can give is privilege. The Clerk of the Commons explains this as follows:
“If an amendment infringes privilege, that is the only reason that will be given. This is because giving another reason suggests either that the Commons haven't noticed the financial implications, or that they are somehow not attaching importance to their financial primacy”.
I strongly recommend that all noble Lords who seek enlightenment on this matter look up the Hansard of 14 February last year, when the Leader of the House gave a little tutorial on financial privilege before your Lordships discussed a number of issues relating to a Bill. There is a long-established pattern of financial privilege that has in essence been unchanged for several centuries, and it is not for the Government to decide whether an amendment is covered by it. The Speaker does that.
Lord Whitty
My Lords, I fully accept that it is for the Speaker to designate financial privilege, but the debate last year to which the noble Lord referred related to expenditure of several hundred million pounds of the welfare budget. During that debate, several Members referred to the fact that there must be a threshold beyond which a Lords amendment was considered an issue of financial privilege. The only point I am making is that the Commons, or whoever jogs the Speaker’s elbow in these matters, needs to take into account the issue that a relatively small amount of financial expenditure and alteration in either direction should not be taken as an issue for claiming financial privilege. I do not want to labour the issue, but there would be a danger of the two Houses coming into conflict if this position were to be adopted by the Commons on a regular basis in relation to relatively small amounts of money.
Lord Newby
My Lords, I hope that the Speaker in another place is listening to your Lordships’ debate and taking note.
The noble Lord, Lord Eatwell, asked whether we had sought the views of the heads of the Ministry of Defence fire and police services. The Government are routinely in contact with all their employers and discuss a number of issues with them. We are accepting the idea of a formal review, and the heads of those workforces will be consulted as part of that process. The noble Lord also asked me how many times the Civil Service Compensation Scheme had been used. I simply do not have the answer, but I will seek it out and write to him about it.
I realise that although the Government are accepting the opposition amendment, a number of noble Lords would like us to go further today. In urging patience on noble Lords, I end simply by reminding them of the words of that well known hymn, “Lead, kindly light”, which says,
“I do not ask to see the distant scene.
One step enough for me”.
I hope that we have taken a positive step today.
Motion A1 agreed.
“(c) includes members of the Ministry of Defence Police nominated under section 1 of the Ministry of Defence Police Act 1987”
Commons disagreement and reason
The Commons disagree to Lords Amendment No. 79 for the following Reason—
Lord Newby
That this House do not insist on its Amendment 79, to which the Commons have disagreed for their Reason 79A.
Defamation Bill
(11 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
17:00 - Division on Motion B1 - Ayes: 197 / Noes: 275 - Motion B1 disagreed.
“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board
(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.
(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.
(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).
(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).
(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.
(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.
(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.
(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendant’s rights can also take into account whether—
(a) a claimant refused to use a recognised arbitration service;
(b) a defendant refused to use or join a recognised arbitration service.”
Commons disagreement and reason
The Commons disagree to Lords Amendments Nos. 1, 15 and 16 for the Reason set out at 16A.
“Schedule
Recognition Commission
1 This Schedule provides the method by which the Recognition Commission may be constituted for the purposes of this Act.
2 Appointments to membership of the Recognition Commission will be made by the Lord Chief Justice.
3 An individual may be appointed only if he or she has consented to act and is—
(a) a present or former Civil Service Commissioner;
(b) a present or former holder of high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005); or
(c) a person who in the opinion of the Lord Chief Justice is suitable for appointment having regard to their reputation and experience and is independent of all political parties and all media organisations.
4 The Recognition Commission must consider whether an Independent Regulatory Board body has—
(a) sufficient guarantees of independence, including suitable independent, fair and transparent procedures for appointments and funding,
(b) suitable functions, powers, personnel and resources to ensure that it can fulfil its principal objectives effectively,
(c) an appropriate standards code,
(d) an arbitration service able to deal with defamation and related civil claims, effective processes for upholding standards,
(e) an efficient procedure for handling complaints, and
(f) is open to all news publishers.
5 The Recognition Commission must review a recognised regulator at least once during the period of two years beginning with the date of certification, and at intervals of not more than three years after that.
6 If having reviewed a body the Recognition Commission is no longer satisfied that it complies with paragraph 4, the Recognition Commission must consult the body and give directions designed to ensure that the body complies with paragraph 4 within a reasonable time.
7 If the body fails to comply with directions given under paragraph 6 the Recognition Commission must revoke the body’s certification.
8 The Recognition Commission shall not be involved in the regulation of any subscriber to an Independent Regulatory Board.”
Commons disagreement and reason
The Commons disagree to Lords Amendments Nos. 1, 15 and 16 for the Reason set out at 16A.
“Schedule
Specialist Arbitration Service
1 An Independent Regulatory Board must provide an Arbitration Service in relation to defamation and related civil legal claims drawing on independent legal experts on a cost-only basis to the subscribing member.
2 The arbitration rules must provide for a fair, quick and inexpensive process, which is inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious).
3 The arbitrator shall have the powers set out in section 48(3) to (5) of the Arbitration Act 1996.
4 The arbitrator must be able to hold hearings where necessary or dispense with them where not necessary.
5 The process must include provision for frivolous or vexatious claims to be struck out at an early stage.”
Commons disagreement and reason
The Commons disagree to Lords Amendments Nos. 1, 15 and 16 for the following Reason—
Lord McNally
That this House do not insist on its Amendments 1, 15 and 16, to which the Commons have disagreed for their Reason 16A.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendments 1, 15 and 16 constitute a partial enactment in statute of a number of the recommendations made by Lord Justice Leveson in his report on the culture, practices and ethics of the press. The reasons given by the other place for disagreeing with these amendments reflect the fact that, as the House will be aware, on 18 March cross-party talks were resolved successfully and a draft royal charter was agreed as the vehicle by which the recognition body should be set up.
Detailed criteria by which self-regulators would be assessed were also agreed, and provisions to enact Lord Justice Leveson’s recommendations on incentives in costs and exemplary damages have subsequently been included in the Crime and Courts Bill. A further “no change” clause has also been included in the Enterprise and Regulatory Reform Bill as a safeguard against political intervention with the royal charter. These measures have cross-party support.
I take this opportunity to address an issue that I know is of concern to the noble Lord, Lord Puttnam, on how provisions are being taken forward to provide access to justice and cost protection for those of limited means. It may be helpful to provide the House with an update on the action we are taking. As noble Lords are aware, we asked the Civil Justice Council to report on the issue of cost protection by the end of March. It has done so, and recommended that the regime of qualified one-way cost shifting, or QOCS, should be adapted to defamation and privacy cases. A number of adaptations are necessary, given the rather different nature and variety of defamation and privacy proceedings compared with personal injury claims. We are now considering the CJC report, and as your Lordships will appreciate this is quite a complex area. While the report does not represent a blueprint of the new rules to be applied, it does set out the issues that need to be addressed, and makes recommendations on how to address them.
It will be for the Civil Procedure Rule Committee to make the rules on costs protection in due course, once the Government have set out the way forward. My officials will work with the Committee on this. I am conscious that the CJC has not consulted on this issue, and I believe that we need to consult before we finalise the proposals. Our aim is therefore to work with the Rule Committee in drafting appropriate rules, perhaps with alternatives, on which we can consult more widely over the summer.
I know that the noble Lord, Lord Puttnam, will be interested in that consultation, and I will ensure that he and other noble Lords with an interest in this area are included in the consultation. Depending on the outcome of that consultation, we then aim to implement a costs protection regime later in the year.
I hope that provides reassurances to the noble Lord, Lord Puttnam, and to others, about the promises I have made about cost protection at various stages of the Bill. During our debate on the Crime and Courts Bill provisions on 25 March, both the noble Lord, Lord Puttnam, and the noble and learned Lord, Lord Mackay of Clashfern, indicated that they were happy for the Bill to complete its passage without Amendments 1, 15 and 16. I hope that remains the case, and that noble Lords will agree to the removal of these amendments. I beg to move.
Lord Lester of Herne Hill
My Lords, first I would say that we often refer to Fox’s Libel Act. I hope that when this Bill becomes law it will be referred to as Lord McNally’s Libel Act, because he above all has had the energy to drive it forward. He said at one stage that he would not allow the Bill to be overwhelmed by what he called the tsunami of Leveson. The reason why I strongly support Motion A is because it provides a way of avoiding being overwhelmed by the tsunami of Leveson. It removes what I consider to be unnecessary hostage-taking in some amendments to the Defamation Bill. It has now been freed in the Commons, and therefore I strongly support it. I have some difficulty with the reason, in a sense, because it says that,
“the draft Royal Charter … and … the Crime and Courts Bill and the Enterprise and Regulatory Reform Bill will be sufficient to implement the recommendations in Lord Justice Leveson’s report”.
I think that is completely true. Whether Lord Justice Leveson’s report will eventually pass muster is quite another question, but that is not to be debated now.
Lord Mackay of Clashfern
My Lords, I am delighted to welcome this situation, and to see the Defamation Bill back on its ordinary course. I do not entirely agree with all that the noble Lord, Lord Lester of Herne Hill, has said about the amendments that were passed by this House, but now they are certainly unnecessary and I am delighted that the Defamation Bill can proceed.
Lord McNally
That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A, but do propose Amendment 2B in lieu.
“( ) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in speaking to this Motion, I shall speak also to Motions B1 and B2, tabled by the noble Baroness, Lady Hayter of Kentish Town, and Motion B3, tabled by my noble friend Lord Lester of Herne Hill.
Amendment 2 concerns two distinct but related issues which have already featured extensively in debates in both Houses during the passage of this Bill. These are whether there should be restrictions on the right of bodies corporate and other non-natural persons to bring an action in defamation, and whether any non-natural person which is performing a public function should be prevented altogether from bringing a claim in relation to a statement concerning that function. I shall focus my comments on government Amendment 2B and the other amendments that have been tabled, rather than on Amendment 2 in its original form.
Amendment 2B amends Clause 1 to make clear that a body trading for profit will satisfy the serious harm test only if it is able to show that the statement complained of,
“has caused or is likely to cause the body serious financial loss”.
In speaking to Lords Amendment 2 in the other place, the Government made it clear that although we were opposed to that amendment, we recognised the strength of feeling that exists on the issue of whether there should be a specific provision in the Bill requiring non-natural persons trading for profit to show financial loss, and that we would consider the point further. This amendment reflects the outcome of those considerations.
As I have explained at earlier stages of the Bill, we amended what was initially a “substantial harm” requirement to one of “serious harm” in order to raise the bar for bringing a defamation claim. The amendment therefore refers to “serious” financial loss to reflect that aim, and now links explicitly to the serious harm test. The use of the phrase “serious financial loss” makes it absolutely clear that the financial loss required to meet the serious harm test must itself be serious. By contrast, the reference in Lords Amendment 2 to “substantial financial loss” could inadvertently have had the effect of weakening what has to be shown to satisfy the test.
Secondly, the term that we have used to define those who will be subject to this requirement—
“a body that trades for profit”—
is a much clearer and simpler definition than that used in Amendment 2. These are the bodies that this House has expressed concern about, so we have phrased the amendment specifically and directly to meet those concerns. A vaguer formulation such as that in Amendment 2 would have risked inadvertently catching other bodies, such as charities, which are not the subject of concern. I believe that this effective and proportionate approach addresses the concerns that have been expressed in this House and elsewhere.
The Government are unable to accept Motions B1, B2 and B3. In relation to Motion B1, as noble Lords are aware, in the case of Derbyshire County Council v Times Newspapers, the House of Lords held that local authorities and central governmental bodies are already prevented from bringing actions for defamation. Motion B1 would add Amendment 2C, which seeks to extend that principle and put an absolute bar on any non-natural person performing a public function from bringing a claim in relation to a statement concerning that function. This would remove completely the right of a wide range of businesses and other organisations to protect their reputation. We consider that to deprive them of this right would be excessive and disproportionate. Although the amendment focuses on criticisms in connection with the exercise of a public function, that criticism could have a wider impact on the reputation of the business more generally. It is important to recognise that unjustified and defamatory allegations can cause considerable damage which affects all those connected to a business, including shareholders and employees.
Baroness Hayter of Kentish Town
As an amendment to Motion B, after “2B” insert “and 2C”.
“Non-natural persons performing a public function
Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”
Baroness Hayter of Kentish Town
My Lords, in moving Motion B1, I start with an extraordinarily warm welcome for government Amendment 2B. There is absolutely no doubt that, late conversion though it may have been by the Government to the arguments of our Benches and of this House, it is a most important and welcome clause. It owes much to the persuasive charms—or energy, in the words of the noble Lord, Lord Lester—of the noble Lord, Lord McNally. The McNally Bill will do us fine.
However, there are still some outstanding issues, not least the one of cost, to which the Minister has just referred. Despite his efforts, and indeed the CJC report on this which was published only last week, we have of course not received the sort of assurance that we had hoped to receive by the time this Bill was enacted, of having agreement on costs. There was clearly a lot of disagreement within the working group, and there is no clear answer in the report as to how, in the absence of CFAs following LASPO, most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of an action open only to the super-rich, as the Government have acknowledged.
I turn to the two issues passed by this House but overturned by the Commons, which the Government have not accepted. First, there is the right of public services to sue for defamation. Derbyshire, as the Minister has said, is really shorthand for the democratic principle that government bodies should be open to uninhibited public criticism and therefore have no right to sue for libel. I assume that arm’s-length bodies, such as the former Border Agency, English Heritage and the Health and Safety Executive, are already covered under Derbyshire. However, there is a wider and growing ring of organisations contracted or commissioned to provide public services, such as independent treatment centres, opticians, dentists and GP consortia, which are either treating or diagnosing NHS patients. There are private organisations providing care homes, school dinners, public transport, advice agencies, prison management, free schools and DWP assessments. These organisations deal directly with consumers, patients, travellers or users—call them what you will—and are spending taxpayers’ money to provide such services on behalf of the state.
Two issues arise if such private bodies can sue for libel. First, there is not a level playing field in tendering. Such organisations can criticise a local authority provider with which they are competing to provide a service completely free from the risk of being sued for libel by that local authority. However, the local authority can be stopped from speaking about a private body in competition with it for the provision of services by the receipt of a chilling letter. Secondly, consumers and users cannot comment on a service they are getting without the risk of that infamous chilling letter.
In a debate in the other place last week, Sir Peter Bottomley reported that Atos, which does disability checks for the DWP, had sent a legal letter which resulted in the closure of a forum for disabled people because of their comments on Atos’s performance. This is deeply worrying. It is quite wrong to deny users the right to discuss their experience of what is, after all, a public service paid for by taxpayers. It is this that most concerns me. Mid Staffs hospital patients and their families were able to go to the press and finally get something done, as were the Hillsborough campaigners who were aghast at the police’s actions and the coroner’s findings. For big effective monopolies, this is the only way of driving up standards or penalising poor services, as consumers cannot shop around for an alternative provider.
It is much the same for other big, albeit now private, providers of public services. Users must be free to voice their concerns. This is what Motion B1, which adds Amendment 2C, is all about. It is about uninhibited users’ criticism of their public services, whether their provider is a local authority or a private concern. In the other place, the Minister did not really disagree with the case that we made, only about whether an amendment was necessary. Worryingly—and this has been echoed by the Minister this afternoon—she said that rather than a statutory provision it would be much better for the courts to develop the Derbyshire principle as they consider appropriate and necessary in the light of individual cases. However, this runs completely counter to the whole thrust of this Bill, which has been to codify and set down in one place, rather than in umpteen legal judgments that are effectively unavailable to the layperson, the whole law on defamation, clearly accessible to all and according to the decisions of Parliament on each issue. That is what this Bill and indeed the Minister in working on it have sought to achieve. If we agree that private concerns delivering a public service should be treated as a public body with regard to libel, Parliament should so decide and should write it into law.
Lord May of Oxford
I wish to make a few remarks which may embarrassingly reveal my lack of full acquaintance with the legal arcana in this case but at the same time remind us of at least one of the major reasons why we are having these discussions. I thank the noble Lord, Lord McNally, for doing a good job extremely conscientiously in complicated circumstances with a lot of opinions swirling round him.
I remind noble Lords yet again of what prompted this action in the first place: libel tourism to this country to shut up people who wish to point out instances of malpractice in pharmaceutical companies in a variety of contexts. I come mainly from the science base, where there are interminable examples, about which I could go on for hours. I will inflict one example on your Lordships and then I will speak more briefly. It is a typical example, which raises many of the issues that still concern me despite the good job that is being done. It comes from a chap called Peter Wilmshurst, who wrote to me in an e-mail:
“I am a consultant cardiologist in Shrewsbury. A US medical device corporation, NMT Medical, sued me for libel and slander three times in the High Court in England. I was the principal cardiologist in research, which was conducted on UK citizens and used a cardiac device made by NMT. At a medical conference in the USA, I expressed concern about the findings of the research and some of my comments were reported on a US cardiology website. As a result NMT sued me in England over the website article and a subsequent article. The journalist and the website were not sued. When I spoke about what happened on the Today programme on Radio 4 I was sued again, despite the interview being pre-recorded so that the BBC’s lawyers could make sure that there was no risk of further litigation. NMT did not sue the BBC. Everything that I said was provably true, but that did not prevent NMT starting expensive claims with the expectation that the cost would stop me expressing concerns about the lack of safety and lack of efficacy of their device. I know that fear of being sued by NMT prevented other doctors expressing similar concerns. The libel cases lasted almost 4 years and my legal costs were £300,000”—
which is actually low compared to some of the incidents in mind. The journal Nature, for example, spent £1.5 million successfully defending one of these libel cases.
Peter Wilmshurst continued:
“The cases ended when NMT went into liquidation as information about the problems with their devices filtered out and cardiologists stopped using them”—
something I will come back to. He continued:
“During the years when NMT silenced doctors who had legitimate concerns, the ineffective and unsafe devices were implanted in patients in the UK and elsewhere. Some patients needed urgent cardiac surgery to have devices removed and some died. That was the true cost of the English defamation laws having no adequate public interest defence to prevent spurious claims by wealthy corporations. I believe that if Parliamentarians did not have absolute privilege when speaking in Parliament”—
and that is a comfort I have here, having once been silenced in a cowardly way—
“and they had only the same protections as ordinary citizens, they would ensure that there was an adequate public interest defence and protection from corporations using the defamation laws to silence whistleblowers and prevent freedom of expression”.
We did that way back.
I mention that example in particular because, as noble Lords will notice, the original action was effective. Ultimately, it caused this company to go bust. One of the amendments we are talking about asks for a way of preventing this sort of bludgeoning of people into silence by the power of the purse and the extraordinary extravagance of our legal procedures. It comes home to us very clearly that simply saying that a company must prove you are damaging them by what you are saying is not going to prevent many of these cases because the aim of what many people are saying when they provoke these actions is, indeed, to inflict damage. The aim is to point out bad and unsafe practice and unsound publications, and to damage the people responsible. I am not clear that simply saying that companies must show they are damaged would really cure the problem at all. I may be revealing my ignorance, but I wanted to say again that this is what provoked it. In what sometimes seemed to me interminable sessions in Grand Committee, in which I took a form of perverse enjoyment, the intense arcana of the legalisms occasionally seemed—to put it gently—to distract from the essence of the problem. My understanding, imperfect though it is, is that we are going a long way to addressing this problem but not all the way that, were I supreme dictator, we would go.
Lord Lester of Herne Hill
My Lords, I hope, in what will be a short speech, to deal with all the amendments together. In answer to the point just raised by the noble Lord, Lord May, corporations are not the same as private individuals. They cannot have hurt feelings but they can be seriously damaged by defamatory statements. I therefore share the view of many courts across the world that corporations should be able to bring libel proceedings but on certain conditions. The short answer to Dr Wilmshurst is that we now have, in what will be Clause 4, a public interest defence which, quite apart from the other provisions in his favour, he would be able to rely upon.
I begin by dealing with the question of damages. I do not want to crow about it, but it was actually in my own Private Member’s Bill that I required corporate bodies to have to prove the likelihood of financial loss or actual financial loss. That was commended by the Joint Committee on the draft Bill and by the Joint Committee on Human Rights on which I serve and, as a member, was able to inform its report. I think that the Government have made an important concession and I am delighted that the Opposition have recognised that and, indeed, have called for it themselves. It is, of course, extremely important that corporations are able to bring libel proceedings but, as I say, are able to do so if they are trading corporations by proving serious financial loss or the likelihood of serious financial loss.
All of that is now common ground, and what is left are the two important issues of the Derbyshire principle and the notion of a special procedural step to be taken, which is set out in Amendment 2D. It requires the permission of the court before a trading corporation can sue. I am persuaded by my noble friend Lord McNally’s way of dealing with that. It is a procedural point that will be dealt with by the early resolution procedure and by proper case management. It does not require a rigid rule to be inserted into the Bill, and therefore I would not support Amendment 2D.
What, then, about the Derbyshire principle? The House has the benefit of having as a Member of the House of Lords the judge who decided Derbyshire when he was even younger than he now is, my noble and learned kinsman Lord Woolf of Barnes, and I am sure that he will correct anything I am about to say. I want to say something about Derbyshire because I think that it has been misunderstood. It has been misunderstood by the Government because they seem to think that if one were to codify—I am now against codifying for a reason I shall come to—that would be in some way rigid and inflexible because it would prevent a body exercising functions of a public nature being able to vindicate its reputation. That is wrong because, as the Derbyshire case establishes and makes clear, unlike the position in the United States where no one can sue to vindicate the reputation of a government body, it is always open to a body exercising public functions through its officers or any individual who is defamed to bring their own defamation proceedings. It also makes it perfectly clear through Lord Keith of Kinkel in his speech for the House of Lords that there is also the tort of malicious falsehood. This means that if a government body can prove bad faith or reckless disregard for the truth, it can also bring proceedings. The Government are therefore mistaken in thinking that to codify in the way that the Opposition wish to do—with my support the last time round—would create a rigid and inflexible position. That is not so, but the question is whether we were right last time to try to codify the principle.
Since then, something has happened which has caused me to think again. It is the situation in Northern Ireland, and I hope very much that the noble Lord, Lord Bew, will say something about it. Since the last occasion, the governing authorities in Northern Ireland have decided in their wisdom that the Defamation Bill should not apply to the Province. NGOs, newspapers, broadcasters and citizen critics often convey information and ideas which are not confined to any particular part of the United Kingdom but extend to the whole of it.
What troubles me about codification is not what troubles the Government. What troubles me is that, were we to codify in the way that is now suggested, in Northern Ireland, Mr Paul Tweed, in particular, who is the king of libel suits in that part of the United Kingdom, would argue, “This is codified in England and Wales but it is common law in Northern Ireland and the way in which it is codified suggests that Parliament had serious doubts about what Derbyshire meant. Now we are going to seek to apply a narrower view than Derbyshire itself”. That has made me think about the whole issue in this context of codification versus common law.
Lord Faulks
My Lords, perhaps I may deal first with government Amendment 2B. Initially, I was very sympathetic to the idea of restricting a company’s right to sue because of the instances of bullying, which are now well known. I have become slightly more troubled by the restriction which is to be imposed in what I hope will not be impolite to call something of a volte-face by the Government in this respect. I understand the reasoning behind it but I seek from the noble Lord, Lord McNally, reassurance about what a company must establish to show that it has been, or is likely to be, caused serious financial loss.
In the well known case of Jameel v Wall Street Journal in 2007, the House of Lords considered, among others, the Derbyshire case. In particular, in his leading speech Lord Bingham said that he was satisfied that it was appropriate for a company not necessarily to prove special damage but to establish that a publication had the tendency to damage. I shall quote from paragraph 26 of his judgment:
“First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect”.
He went on to say:
“I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue”.
What concerns me a little is that a company that has genuinely been damaged in its reputation will often find it very difficult to surmount this hurdle which is inserted in the Bill when it is not easy to produce by reference to a balance sheet an exact equivocation between the damage to a reputation and the damage to a company. It may be much more subtle than that, yet there is genuine damage to a reputation. Therefore, I would welcome some clarification from the Minister about what a company may need to establish short of producing a balance sheet, nevertheless having some evidence of real damage to the company.
There is a problem with the alternative tort of malicious falsehood in that the offer of a mens rea defence is not available. Of course, malicious falsehood requires proof of malice and is a somewhat unsatisfactory hurdle where a defamation action is, on the face of it, more suitable.
As to the amendment suggested by the noble Baroness, Lady Hayter, concerning non-natural persons, I entirely agree with my noble friend Lord Lester. I can add that the courts are currently considering a number of cases where they are patrolling the border, as it were, of the Derbyshire principle and deciding whether, on particular facts, the ratio decidendi of Derbyshire should be applied to a public role or public function having been performed by a particular body. I suggest that it is much better for the law to evolve, as the Minister said, rather than to codify it in this way. Of course, at the moment the courts are generally considering the question of public function in the context of the Human Rights Act and whether the obligations under the convention apply. There are many hybrid cases which are going to make these cases very fact-sensitive, and that is an indication that we should avoid trying to codify.
I strongly oppose Amendment 2D proposed in Motion B2. The initial requirement of seeking the permission of the court is going to add to costs. Largely thanks to the helpful intervention of the CPR—I see the noble and learned Lord, Lord Woolf, in his place—the courts have the flexibility to intervene on questions of meaning. They can strike out the whole or part of a case. In any event, I suggest that there is sufficient flexibility to make this initial hurdle supererogatory. It will be expensive and I fear that it will not in fact achieve what I understand lies behind this amendment, and so I strongly oppose that.
Lord Phillips of Sudbury
My Lords, I shall talk briefly to Amendment 2B and, in so doing, I echo what has been said about my noble friend Lord McNally. I do not know about McNally’s Bill but I certainly knew a Bill McNally, who was one of the finest poachers in Suffolk.
I am not happy with Amendment 2C, in the name of the noble Baroness, Lady Hayter of Kentish Town, but I have a lot of time for her Amendment 2D, supported by the noble Lord, Lord May of Oxford. As was said by my noble friend, there seems to be considerable anxiety around the bullying of corporations, which seems to get worse as time goes by. Some of the largest and wickedest of them are some of the most brutal in the way that they will abuse the law to silence critics.
I want to raise with my noble friend Lord McNally a point on Amendment 2B because this is potentially a Pepper v Hart occasion, where he could say in the most trenchant terms that my concern is misplaced. The amendment enlarges on Clause 1 of the Bill, headed “Serious harm”. It says:
“For the purposes of this section, harm to the reputation of a body that trades for profit”.
I am not absolutely clear that the phrase,
“a body that trades for profit”,
is beyond ambiguity. I am thinking particularly of charities, some of which trade for profit in the mainstream of the work that they do—for example, some schools, some hospitals and gymnasia. There are many areas where charities carry on a trade, but it is a charitable trade and it is, in one obvious and simple sense, for profit because it generates the wherewithal enabling them to run their hospital or whatever it is. I could have chosen language, I think, that would put the meaning beyond doubt, but we have to live with the wording that is here. As I understand it, there is no further opportunity to change the phrasing of this part of Amendment 2B. So I hope that my noble friend Lord McNally will assure me that this wording is specifically designed to exclude from its ambit the work of charities. Otherwise, I think we have a very large problem with this amendment.
Lord Bew
My Lords, I rise to speak to Amendment 2C. However, I feel I have to respond immediately to the words of the noble Lord, Lord Lester, which I have to say, on behalf of Northern Ireland as a region, makes me feel very uneasy.
The point about this Bill is that it is not just about enhancing press freedom but about public debate more generally, including academic freedom. I find it very disturbing that the region of the United Kingdom from which I come is opting for a more restrictive type of public debate and deciding not to engage in the wider freedoms that will now be available for public expression in the United Kingdom more generally. I find that is almost a self-mutilating act. The only thing I can say to the noble Lord, Lord Lester, is that I hope over time—but not too much time—the Northern Ireland Assembly will rethink its position. It was a position taken up when the tsunami of Leveson was sweeping over this Bill and it was not at all sure that this Bill would pass. It was a very surprising statement even in its timing. The best resolution of that would be for the Northern Ireland Assembly to reconsider, because innumerous anomalies will otherwise be created as regards the circulation of British media—not just newspapers but organs like the New Statesman and the Spectator—in Northern Ireland unless there is a rethink. I hope that there will be a rethink because otherwise it would leave us in a very unsatisfactory situation. It might be helpful in promoting that rethink if the leaderships of the parties in this House all indicated their unease with the situation in Northern Ireland. This Bill has all-party support and it might be useful to indicate a certain unease with the situation that we are facing.
Viscount Colville of Culross
I would like to express my relief that the Defamation Bill has finally been unblocked and returned to your Lordships’ House. I thank the noble Lords on both Government and Opposition Front Benches for their tireless efforts to make sure that the Bill reappeared in this place.
I strongly support government Amendment 2B. During my career I was a journalist, and I spent some time on small regional newspapers. There were a number of occasions when I felt the mighty weight of companies bearing down on my reporting. I am ashamed to say that on some occasions, even when I had a powerful and well supported case revealing wrongdoings by a company, the legal letters from the company’s representatives threatening libel action, and the uncertainly of the outcome under the present libel laws, meant that those articles were not published. We live in an era when business PR regards anything but abject praise as an attack on a company. It seems to me that an amendment which demands a threshold of serious financial damage to a company before it can sue for libel will allow a much greater atmosphere of transparency and openness when questioning its activities.
I support the amendment put forward by the noble Baroness, Lady Hayter, and I listened with great respect to the noble Lord, Lord Lester, as I always do. Why, if Northern Ireland is having such problems with this, should the rest of the United Kingdom suffer? Why should it not be allowed to have the benefits of the Bill? It extends the Derbyshire principle into statute rather than waiting for it to work through common law, as suggested. This amendment attempts to incorporate the Human Rights Act 1998 which says that a private company performing public functions should be considered as an organ of the state. The ever increasing expansion of private companies being subcontracted to run public services makes it ever more urgent that the Derbyshire principle should now be established to cover those companies as well.
I have a short example. Last year, the Guardian received evidence from whistleblowers about the company, Serco. The allegations stated that the private health care provider, Serco, which runs the GP out-of-hours service on behalf of the NHS in Cornwall, had not employed enough skilled staff to meet patients’ needs and that the company was altering performance data to show a more positive outcome. Throughout May of last year the solicitors, Schillings, on behalf of Serco, sent a series of letters to the Guardian threatening it with libel action if it went ahead and published the evidence. The Guardian ignored these threats and published a series of articles by Felicity Lawrence. Then in July 2012, a report by the Care Quality Commission found that Serco had indeed not employed enough qualified staff to meet the patients’ needs, and a National Audit Office report this year found that there was evidence that the performance data had been altered to overstate the service’s performance.
The Guardian is big enough to resist these libel threats, but a smaller paper or website might well not have been able to do so. Had the service been run by the NHS it could not have issued those threats, but under the present law Serco was able to do so. Why should a company carrying out public functions be able to threaten critics with libel—possibly using public money—while a public body itself carrying out those functions would not be able to do so? In considering how to vote, I ask your Lordships whether we should not provide a level playing field in this matter.
Lord McNally
My Lords, I am very grateful for the contributions that have been made. This is not the Bill that my noble friend Lord Lester introduced into this House just over two years ago. It is not the Bill that the Government produced in draft for pre-legislative scrutiny. I am proud that it is a Bill that has gone through every process of political and parliamentary procedure, from a resolution at a Liberal Democrat conference to being an Act of Parliament, if we are successful today. However, this means that people around the House and campaigning groups around the country have not got everything they wanted from this Bill. One of my political heroes was the late George Woodcock, the general secretary of the TUC, who once said that good trade unionism was a series of squalid compromises. I do not suggest that the compromises that we have arrived at thus far are squalid. Nevertheless, when looking at a Bill such as this, it is necessary to remember the various pressures—some of which have been reflected in the useful debate that we have had—before making a judgment about challenging the other place once more.
The noble Baroness, Lady Hayter, raised the matter of cost still being in doubt. I would personally like to have had a clearer position, but we are working through on this. I have given enough assurances that we will make sure that the cost issue is clearly dealt with before this Bill comes into force. There are enough indications of the way that Parliament, Lord Justice Leveson and the CJC want to go that I am pretty confident that we can get a cost protection measure in parallel with the Bill which will satisfy the wishes of this House.
Perhaps I may also deal with an issue that has been raised in a number of interventions, including by the noble Viscount, Lord Colville. We have a dilemma that has happened under successive Governments. It is that what was once a clear line between the public and private sectors is increasingly becoming blurred, wavy, or even dotted. It is not as clear as it once was. I personally believe that at some stage we are going to have to deal with the anomalies created by the blurring of those distinctions and the fact that far more private sector companies carry out public service duties. However, I hope from what my noble friend Lord Lester said, and I said, that there is sufficient argument to say that for the moment we should rest on common law to deal with this matter. I fear that if we try to push too hard to implement this into statute now we will not convince the other place.
On the workings of the Civil Procedure Rule Committee, another matter that the noble Baroness, Lady Hayter, mentioned, it is not true that we will have to wait two years for case management. We are hoping to have guidance on case management in place, as with the costs, by the time that the Bill comes into force later in the year.
Before I move on, I am pleased to see the noble Lord, Lord Browne, in his place. I want to put on record that the noble Lord, Lord Browne and the noble Baroness, Lady Hayter, are a model of constructive opposition in the way they have handled this Bill. I hope that does not ruin his reputation. He will never recover from that.
The noble Lord, Lord May, referred to Committee stage as being a perverse pleasure. I think I know what he means, but it was a pleasure and an honour to have so distinguished a scientist contributing to our deliberations. It is an area which, along with the academic freedom that the noble Lord, Lord Bew, referred to, has been among the things that I have been most concerned that this legislation should try to protect.
The noble Lord, Lord May, referred to the question of Dr Wilmshurst. Another name that has often been referred to has been Simon Singh. They have been the cause célèbre about the deficiencies in our law. I have constantly said to my officials, “How will it be different after our Bill becomes an Act?” It will be different in both those cases. People pursuing them would have to satisfy the serious harm test. The defendants would have the new public interest defence contained within Clause 4 of the Bill. Alongside the Bill we are introducing cost protection measures to provide additional protection to those with limited means. More generally, to support the scientific and academic debate, the Bill also creates a new defence against libel for peer-reviewed material in scientific and academic journals and extends qualified privilege to reports of scientific and academic conferences.
Although I am not sure that we will ever be able to protect everyone from the speculative chilling solicitor’s letter, I hope that people receiving that chilling letter will realise that the law has changed. It has changed to protect them and build in protection for the Dr Wilmshursts and Simon Singhs of the future.
Lord Lester of Herne Hill
I am grateful to my noble friend. Although my noble friend is not a lawyer, and has the great advantage of not being a lawyer, would he agree with me as a matter of common sense, that it cannot make the slightest difference whether it is the prison department or a private contractor managing the prison so far as the Derbyshire principle is concerned, because the Human Rights Act makes that quite clear?
Lord McNally
I have no doubt that my noble friend is right. What I would prefer to do, as we have been arguing throughout this, is to leave that matter to a judge and a court, when it comes before it. Where I do think there is a relevant question—not that my noble friend’s question was not relevant, it is just that I did not want to answer it—is on the question of charities. I can confirm to my noble friend Lord Phillips that it is not our intention to catch charities. We think that it is very unlikely that a court would find that a charity was a body trading for profit. There is a clear distinction between trading for profit and simply making a profit to reinvest as part of the more general purposes of the organisation. I hope that will give comfort to my noble friend.
He was another one that was concerned about bullying, and I have just made the point about balancing. I was pleased to hear about Bill McNally, not least that he was a successful poacher.
The points made by the noble Lords, Lord Bew and Lord Lester, about Northern Ireland are worrying, and I will take up the point about whether there can be some cross-party demarche to our fellow parliamentarians in the Northern Ireland Assembly, because it would be a great pity if Northern Ireland were to be out of step on this.
I understand why I am being asked to make definitions. However, the fault lines are moving and we will have to trust the courts with this strengthened Bill for them to make the right decision in this area. I take the point made by the noble Lord, which is very valid. Although I and Parliament have made clear our desire for a direction of travel here, there is a danger that the Derbyshire principle may be eroded because of this new configuration. However, trying to put the Derbyshire principle into statute at this time is not the way forward. The common law can be trusted to develop in the right direction. As I have said previously, no law on earth can prevent a speculatively threatening letter from a solicitor.
The Bill has been the work of many hands. If a piece of legislation were to be subject to a paternity test and DNA testing, this Bill’s DNA would be far more likely to be that of my noble friend Lord Lester than me. However, I have enjoyed—I think that that is the right word—taking the Bill through with the help of many hands and some very constructive contributions. I hope that the House’s last and most constructive contribution will be to accept the Government’s amendment and reject the amendment in the name of the noble Baroness, Lady Hayter.
Baroness Hayter of Kentish Town
My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.
I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.
As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.
Lord Lester of Herne Hill
I am very sorry to intervene, but Clause 1 has to be read with what we are talking about.
Baroness Hayter of Kentish Town
It was the word “bring”. What we are trying to say regarding permissions is that permission of the court should be required in order to bring that action. In a sense, the most effective speech about permissions was, of course, made not by me but by the noble Lord, Lord May of Oxford. He discussed the case of Wilmshurst, which involved four years, £300,000, a risk to patients and actually of course no serious case at the bottom of it, because what he said was true. That is what we are trying to get rid of.
To turn to the main issue of Derbyshire, in a sense this is quite a simple judgment. It is a judgment about whether the noble Lords, Lord Faulks, Lord Lester and Lord McNally, are right that we should leave it to the courts and to judges to decide on whether the Derbyshire principle should now apply to other organisations providing public services, or whether we as Parliament want to take that decision. My fear about leaving it to the courts is how on earth users—patients, Travellers, people who are receiving those public services, the disabled who go to Atos—are to know what their rights are if we have to wait for the court to develop the Derbyshire principles. How are parties going to know? Who will fund the test cases? What message does it give to users and patients, and indeed to journalists wanting to report their complaints, if they must wait to know what the outcome is?
Lord Faulks
I am very grateful to the noble Baroness for giving way. I understand her desire not to encourage unnecessary litigation, but perhaps she could help me and the House with this. Even under the amendment it will be necessary for a court to decide whether a non-natural person is performing a public function. That of itself may be the question of a judicial decision, so even her amendment is not going to preclude any involvement of the judges.
Baroness Hayter of Kentish Town
It is interesting, but performance of public function will be under either a contract or a commission given out by the DWP or the local authority. They will be able to define that, because they do not simply stand up and say, “I am now providing a hospital”. A contract will exist with what used to be a PCT and is now a GP commissioning group. There will be a contract and it can be defined in that way. If that was the only problem and the Government wanted to concede other than on that, I would happily take that. No, the offer is not coming. I would like to conclude, if possible—
Lord Lester of Herne Hill
I am very grateful. The problem is that Section 6 of the Human Rights Act talks about functions of a private or public nature. That is fact-sensitive and cannot be codified, and has not been codified by Parliament in the Human Rights Act. That is why one cannot simply brush it aside and say, “Well, now Parliament must do so”, because Parliament has not done so in the Human Rights Act and cannot do so here. It has to be left to the courts to apply the test.
Baroness Hayter of Kentish Town
Parliament can decide that the organisations contracted to do those public functions should have the same restrictions on them, whether that be FOI or anything else, as a corporate body. That can be part of the contract. In a sense, it is a simple issue, and I mean this with absolute respect. I know that lawyers much prefer that these issues are decided in court. I think non-lawyers prefer it to be clear in law, and that is what we believe should happen. We do not want the Derbyshire principle to be eroded, in the words of the noble Lord, Lord Bew, by the threats continuing until a case is brought. For that reason we would like this to be in the Bill, and I would like to test—
Lord McNally
Before the noble Baroness sits down—no, she is absolutely right—and before she lures Lord May and others into her Lobby, would she confirm that what we are doing in this Bill would have significantly assisted both Simon Singh and Mr Wilmshurst? We have not left the situation as it was. We have made significant changes and built in significant protections, which should be taken into account before people decide which way to vote.
Baroness Hayter of Kentish Town
If they read my article, they would see that it says that this Bill has gone a long way towards what we want and it is only a shame that it is not perfect. As somebody who likes perfection, I am going to ask the House if, particularly on the first amendment, we should ensure that organisations carrying out a public service should not have the right to sue for libel.
Crime and Courts Bill [HL]
(11 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Meaning of “relevant publisher”
(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material—
(a) which is written by different authors, and
(b) which is to any extent subject to editorial control.
This is subject to subsections (5) and (6).
(2) News-related material is “subject to editorial control” if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for—
(a) the content of the material,
(b) how the material is to be presented, and
(c) the decision to publish it.
(3) A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for content of the material, if the person did not post the material on the site.
(4) The fact that the operator of the website may moderate statements posted on it by others does not matter for the purposes of subsection (3).
(5) A person is not a “relevant publisher” if the person is specified by name in Schedule (Exclusions from definition of “relevant publisher”).
(6) A person is not a “relevant publisher” in so far as the person’s publication of news-related material is in a capacity or case of a description specified in Schedule (Exclusions from definition of “relevant publisher”).”
“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.”
Lords agreement and amendment to the Commons amendment
The Lords agree with the Commons in their Amendment 131, and do propose Amendment 131A as an amendment thereto—
“Small-scale blogs
7A A person who publishes a small-scale blog.”
Commons disagreement and amendments in lieu
The Commons disagree to Lords Amendment 131A, but do propose the following amendments in lieu—
“(7) But a person who is not a “relevant publisher” as a result of paragraph 7A of that Schedule (micro-businesses) is nevertheless to be regarded as such if the person was a member of an approved regulator at the material time.”
“Micro-businesses
7A (1) A person who, in carrying on a micro-business, publishes news-related material where either condition A or condition B is met.
(2) Condition A is that the news-related material is contained in a multi-author blog.
(3) Condition B is that the news-related material is published on an incidental basis that is relevant to the main activities of the business.
(4) “Micro-business” means a business which—
(a) has fewer than 10 employees, and
(b) has an annual turnover not exceeding £2,000,000.
(5) The number of employees is to be calculated as follows—
(a) find the total number of hours per week for which all the employees of the business are contracted to work;
(b) divide that number by 37.5.
(6) “Employee” has the same meaning as in the Employment Rights Act 1996 (see section 230 of that Act).
(7) “Multi-author blog” means a blog that contains contributions from different authors.”
Lord McNally
That this House do not insist on its Amendment 131A, to which the Commons have disagreed and do agree with the Commons in their Amendments 18A and 131B in lieu.
The Minister of State, Ministry of Justice (Lord McNally)
I beg to move Motion A standing in the name of my noble friend Lord Taylor of Holbeach.
Noble Lords will recall that when this House considered the Commons amendments to the Bill on 25 March it accepted a series of Commons amendments that form part of the cross-party deal on Leveson and ultimately seek to establish an incentive-based, self-regulatory system for the press as envisaged by Lord Justice Leveson.
In advance of the debate on 25 March, the Government recognised that there was continuing concern in relation to the impact of the new system on small-scale blogs. Indeed, Lord Justice Leveson himself was clear that he did not expect very small publishers to join the new self-regulatory body. In recognition of the continued debate around the extent of the definition of “relevant publisher”, this House accepted the government amendment, Amendment 131A, to allow a period of further reflection over the Easter Recess and thereby ensure that the issue remained in play and could be discussed further in the Commons during the next round of ping-pong.
It might at this stage be helpful to remind noble Lords briefly of the context of these further amendments and explain the rationale behind the definition of relevant publisher. At present, four interlocking tests serve to define who is, and is not, a relevant publisher and therefore affected by the system of incentives. A relevant publisher must publish news-related material, which must be written by different authors, be subject to editorial control and be published in the course of a business, whether or not carried out with a view to profit.
Further to this, a number of specific exclusions have also been set out in the new schedule provided for in Commons Amendment 131. These exclusions include special interest titles, scientific journals, publications by public bodies and charities, book publishers and company news publications. However, the provision as drafted raised concerns on the part of small-scale blog sites that they could be caught by the definition of a relevant publisher, and that this was not an outcome we sought in establishing the definition. We have now had the opportunity to hold discussions with a number of relevant parties to understand their concerns about the extent of the relevant publisher definition. These were valuable discussions and Amendments 18A and 131B agreed yesterday by the Commons reflect the outcome of those discussions. I can also confirm that the amendments were agreed in advance on a cross-party basis.
Amendment 131B develops the list of exclusions from the definition of relevant publisher. Specifically, it exempts microbusinesses where they are either a blog or where their publications are only incidental to their other business activities. Microbusinesses which publish news-related material that is incidental to the main activities of their business are also exempted, whether they do so online or offline. The definition of microbusinesses in this amendment captures any business with fewer than 10 employees and a turnover of less than £2 million. This definition is frequently used by the Department for Business, Innovation and Skills. We consider that measuring both the number of employees and the turnover of an organisation, and setting the bar at this level, provides the most appropriate proxy for potential impact and harm and ensures that the incentive system is proportionate.
The aim is to make certain that the incentive system affects only those publishers Lord Justice Leveson intended to capture and that, by extension, many blogs, small web forums and think tanks will fall resolutely outside the incentive framework. Noble Lords will appreciate that it is, of course, ultimately and properly a matter for the courts to decide in any particular case whether a publisher falls within the revised definition of a relevant publisher. It is worth noting here how blogs may be perceived to be different from, for example, the online edition of a newspaper. Blogging takes many forms and is an evolving concept. However, there are some key features which distinguish blogs, even where they are edited and multiauthored, from online news reporting. A blog is used primarily for the expression of opinions, comments or personal experiences by an individual or group of individuals. Multiauthored blogs usually cover a single subject of interest, such as food or fashion, or a particular viewpoint, such as a political blogsite. Blogs do not usually report in a factual or neutral way on news or current affairs but are led by the personal views and voice of the individual or group of individuals concerned. The amendment intentionally contains no definition of a blog. It will take its natural, commonly understood meaning and, in the usual way, the term will ultimately be subject to interpretation by the courts.
Amendment 18A allows those parties not captured by the new exemption to benefit from the incentives around exemplary damages and costs, should they choose to join a recognised regulator. We consider this ensures that the system is fair and that those parties not captured by the definition can remain competitive. By joining a recognised regulator, parties not captured by the definition will now have the opportunity to benefit from the system of incentives we are putting in place.
Before concluding my remarks, I will clarify again the effect of the definition of “relevant publisher” on some other interests, in particular news aggregators. It is not our intention that these provisions should capture news aggregators such as Yahoo!, MSN or Google. News and content aggregators who license or otherwise acquire news-related content from third parties control this content only in so far as they decide how to present it in its totality to the end-user. To that extent, they are not subjecting the material to “editorial control” as defined in the provisions.
Lord Justice Leveson did not intend services that provide a platform for bloggers to post content to be captured. Again, the control that is exercised by aggregators here is limited to the high-level presentation of the content. It is for these reasons that news aggregators are not intended to be captured by our definition. Likewise, the definition is also not intended to capture political parties. These were not the target of Lord Justice Leveson’s reforms and it has not been the Government’s intention to capture them. In order to qualify, an organisation must meet all four tests in the definition: it must be publishing news-related material; the material must be written by different authors; it must be subject to editorial control; and it must be carried on in the course of business. An individual MP who runs a blog site should also be safely outside the definition as they would be unlikely to qualify for the four tests. If for some reason it was felt that they did, they would also be able to look at the microbusiness exemption.
It is also likely that many smaller political campaigning organisations will be able to take advantage of the new microbusiness exemption. They will qualify if they are microbusinesses and operating a multiauthored blog. If they are operating a multiauthored blog but publication of news-related material is incidental to their main activities, they will also be exempt.
I would like to underline that the activity of running a web forum is also not caught by this definition. I draw noble Lords’ attention to the additional provisions in the legislation which explain that the moderation of websites does not qualify. This is also true of blogs if they are posted without the exercise of editorial control. Therefore, a site like Mumsnet, to the extent that it runs a blog forum, is not caught by these provisions. However, any site, including Mumsnet, that moves into commissioning and publishing news stories may be caught by the definition.
I hope that this has helped to provide some clarity on who it has been the intention to capture in the definition and, equally importantly, who is not caught. I believe that these provisions provide a proportionate approach to implementing a crucial part of Lord Justice Leveson’s reforms. I commend these amendments to the House.
Lord Avebury
Before my noble friend sits down, perhaps he could help me on material that is published in the cloud. He went into very helpful detail on blogs, but material can be aggregated in the cloud in specific folders. Can the Minister say whether that is exempt in the same way that blogs are?
Lord McNally
I am not as au fait as the noble Lord and I have only just come to terms with clouds and things like that. What exactly is his concern?
Lord Avebury
Would material which is aggregated in a cloud folder with something such as Dropbox, where you can put a number of different items which may be news or other kinds of material, be exempt in the same way that blogs are?
Lord McNally
I am reliably informed, post haste, that such aggregates in clouds are not covered. If by any chance that is not true I will write to the noble Lord and make sure the letter is circulated to the House. I cannot see over my shoulder but I sincerely hope that the Box is currently nodding firmly.
Lord Stevenson of Balmacara
I can inform the Minister that the Box looked absolutely transfixed by that recent exchange. I do not know who is more surprised, them or us, by the ability of the noble Lord, Lord Avebury, to come to the white heat of the technological revolution and ask a question that has stumped us all. On this side of the House, we would venture to say that we think they are covered, but that just adds a little piquancy to the debate which will, I am sure, be resolved before we get too far down the line.
Following the Leveson trail is a bit like appearing in “Rosencrantz and Guildenstern are Dead”. We pop up at odd times as other events seem to be filling the spaces. We pay a small contribution to it and then we discover that the whole event has moved on, another Bill has appeared, and yet another set of amendments appears which look awfully like the ones we have just been discussing. Only earlier today, we knocked out one set of amendments, yesterday we could have done the same, today we hope they will stick. I want to reassure the Minister that we will be supporting him in this event and he will not need to use the wiles he displayed when he almost reached across the Dispatch Box to my noble friend Lady Hayter to try to persuade her not to push her vote. The vote was unsuccessful so he won out in the end anyway: he has all the luck.
As the Minister has explained, these amendments, inserted into the Bill late in the process, provide for new rules on exemplary damages and costs. They are an essential part of the cross-party agreement on a royal charter which is part of the new framework of independent self-regulation, guaranteed by law, as recommended by Lord Justice Leveson. This part of the Bill aims to provide publishers with incentives to sign up to the new system of self-regulation that should meet the criteria set out in the royal charter. Publishers that join a recognised regulator will receive protection from the award of exemplary damages in media disputes, the opportunity to use an arbitration service and cost benefits from having access to this service. That is one reason why it would benefit local as well as national newspapers. If a complainant chooses not to use the arbitration service, they can still be liable for costs even if they win.
Lord Justice Leveson’s report was mainly about the press but the original drafting of this Bill had the unintended effect of catching blogs. That said, Lord Justice Leveson did express the hope, in Recommendation 73 of his report, that online publishers would also join a regulator. The Bill therefore needs to be amended to ensure that exemplary damages did not apply to blogs and they could receive the benefits of joining a recognised regulator. In recognition of the fact that this is a complex area, your Lordships’ House agreed a placeholder amendment on 25 March. The Government’s decision to hold a mini consultation and pause for reflection to consider how the Bill should deal with the blogosphere was sensible and we agree with the policy objectives that the Government are seeking to address to exempt micro businesses from the definition of relevant publisher where they are a blog or where their publications are merely incidental to their other businesses and to enable such micro businesses to receive the benefits and cost incentives of joining a recognised regulator. The Minister has been helpful in setting out a number of accompanying thoughts around these points and the issues relating to what would and would not qualify, and I think they will bear further consideration once we see them written up in Hansard.
However, the main point is that the amendments we are now looking at and which we support define a small blog as one whose turnover is below £2 million and has up to 10 employees. It exempts such businesses from exemplary damages and enables them to benefit from the cost advantages of an arbitration service if they join a regulator, and that last point will be particularly welcome to the community. As I say, we support the proposals, and I am grateful for the manner in which they have been pursued within the all-party agreement which has underpinned the whole process, so we will not be dividing the House.
In the time available, I would like to make a couple of ruminations about some of the issues that we are talking about today, and within that are two questions to which I hope the Minister will be able to respond. The first is that the digital world as we know it is changing rapidly and the complexity and parliamentary arithmetic of changing the royal charter means that it will be hard to alter the legislation after this Session, so it needs to be right. What consideration have the Government given to the health and future of the blogging industry, and can the noble Lord share with us the Government’s thinking on this point? I understand that the indicators for a micro-business have come from a definition used by BIS, and in that sense they are not specific to the blogosphere. I have had representations already, and I am sure that other noble Lords will also have received them, from those who argue that the figures being used are on the high side, as rarely do we find 10 employees or even an annual turnover of £2 million in a blog company. That would make for a very healthy company, but it is not how the sector operates. Can the Minister estimate roughly how many blogs this definition would capture at present?
I turn to a related but more general point. We are talking about an industry that is in the process of change. For example, the print circulation of newspapers is estimated to shrink by at least a quarter in the next five years and yet we are facing a rather bizarre situation where newspapers are exempted the full 20% rate of VAT on print sales despite the fact that in many cases online traffic now represents the majority of their audiences. This is something which is bound to grow as we go forward. In fact, we are fast approaching a situation where what we previously believed, which is that we in this country do not tax reading, is becoming the reverse of what will happen. Those who read using electronic means, which will include those who are caught by this amendment, will be paying 20% VAT. Is this something that the Minister can say is under consideration, because it seems to me that we will need to face up to it before too long?
I am very grateful to the Minister for mentioning Mumsnet because it was the subject of discussions in another place, and others have raised it. The break point that he expressed is one to which we may need to return. Perhaps when he concludes he will reflect on this. At what point do those who blog and use it as a campaigning tool get caught? There is some doubt in what he has said about whether Mumsnet, which is not a charity but exists largely to circulate material that is in favour of a particular point of view, could possibly be caught by this exception. It is one of a number of areas in which, as the Minister has said, time will show us what emerges. However, a little more clarity at this stage would be helpful.
Finally, the Minister was keen to assert that it would not be sensible at this stage to define a blog. He was then caught quite quickly by a question related to blogging which illustrates that sometimes it might be sensible to have in primary legislation clear definitions which we can all use. I understand and support the idea that it is probably wrong to try to be definitive at this stage and that we should see how things go, but if that is the case, are there are any thoughts about how the Government might consider revisiting the issue within a reasonable time if it turns out that we need to move? After all, as I have said, this is the digital age and things are moving fast. What is a blog today may change into something else, and we want to be sure that we have the flexibility which I do not currently see in the Bill.
Lord McNally
I thank the noble Lord, Lord Stevenson, not only for that reply but for the constructive role he has played in getting us as far as we are today. It is important to retain an all-party approach as we take this through. The noble Lord asked how many blogs this amendment will cover. We cannot provide an accurate estimate because blogs are constantly started up and then stopped. However, we feel that this is the right figure in order to exclude all those who we hope and intend to exclude. On the definition of a blog, I was tempted to call in aid that used by Clement Attlee when he wanted to exclude Trotskyists from the Labour Party. They said, “How do we know who are Trotskyists?”, and he said, “It’s a bit like an elephant—when you see one, you know one”. In a way, we are groping with blogs in an age of technology that is constantly and frighteningly rapidly changing.
We have tried to get some key features which distinguish blogs from online newspaper reporting. A blog is used primarily for an expression of opinion. Multi-authored blogs usually cover a single subject of interest. In all cases, blogs do not report in a factual and neutral way on news or current affairs but are led by the personal views of the individuals. While an online news site may contain comment, opinion or bias, comment pieces are not its principal focus. What constitutes a blog may change over time as convergence increases.
It is a difficult area. When we debate these areas, we often point out that future-proofing is virtually impossible. We hope that the definition I have given today has been sufficiently carefully drafted to provide the maximum possible clarity to organisations seeking to know whether they are caught. We have produced a handy set of questions on our website to help organisations to work this out. This is intended as guidance only. Ultimately, as in the case of all legislation, the decision on whether an organisation comes within or outside the scope of any particular piece of legislation will fall to the courts. The intention of the definition is to capture news publishers who were the focus of Lord Justice Leveson’s inquiry and his subsequent recommendations. They are intended to act as the key incentive for those publishers to join the new press regulator, while also protecting those not intending to join.
On Mumsnet, protection is the interlocking test, but such an organisation may branch out or develop a kind of activity which takes it into the realms of news and newspapers—a news media. Again, we would have to be flexible. If an organisation develops in a way that makes it a news organisation, it would have to consider its position. Lord Justice Leveson, in making his recommendation and recognising the changing architecture of our media, specifically said that he hoped news organisations that were primarily online would consider themselves willing to join any new regulator.
Parliament at both ends of the Corridor has done a good bit of business in dealing with a specific concern that was raised. I thank the noble Lord, Lord Stevenson, for his very constructive and helpful approach, not only at the Dispatch Box, but in bilateral discussions.