Grand Committee
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Perhaps I may remind the Committee that in the event of a Division in the Chamber the Committee will adjourn for 10 minutes from the sound of the Division Bell.
Intellectual Property Bill [HL]
“(1) In section 213(1) of the Copyright, Designs and Patents Act 1988 (unregistered design right: nature of design right), for “an original design” substitute “a design which is new and has individual character”.
(2) In section 213(2) of that Act for “the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article” substitute “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself or its ornamentation, or both”.
(3) In section 213(3) of that Act, for paragraphs (a) to (c) substitute—
“(a) features of appearance of a product which are solely dictated by its technical function;(b) features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function;(c) a design which is contrary to public policy or to accepted principles of morality.”(4) For section 213(4) substitute—
“(4) In determining whether a design is new and has individual character, the definitions contained in Articles 3, 4(2), 5(1)(a), 5(2), 6 and 7 of the Community Design Regulation, Regulation 6/2002 of 12 December 2001 (as amended), shall be applied.”
(5) In section 51(3) of that Act (design documents and models), for the definition of “design” substitute—
““design” has the meaning conferred on it by section 213(2);”.”
Lord Stevenson of Balmacara
My Lords, I welcome the Minister and his team and thank them for the contribution they have already made to our understanding of these complex matters. Design rights are not easy, and it has been a bit of a learning curve for many of us. They have been extremely helpful so far, and I hope that we can work together to improve the Bill.
In Russell-Clarke and Howe on Industrial Designs, Martin Howe describes this as an area of law of “labyrinthine complexity”. Professor Cornish calls it “an absurd maze”. In response to the consultation, the IP Federation stated:
“Designs legislation is very hard to grasp. The legal complexity of the design system as a whole is confusing and hard even for advisers to handle on occasions”.
I could mention Ministers and shadow Ministers. I am sure that would have been perfectly appropriate.
The Government acknowledge that design rights law is complex and that the UK is currently out of step with other EU countries in retaining a relatively generous monopoly power provided by the unregistered designs right. However, they propose to do very little about this. The proposed reforms relate to minor matters, such as changes to the ownership of designs.
As the patents judges, Lord Justice Kitchin, Justice Floyd, Justice Arnold and His Honour Judge Birss QC, said in their response to the consultation, the amendments which have been put forward through this consultation exercise and survive in the Bill,
“represent ... piecemeal tinkering. What is urgently required is a thorough re-appraisal of UK design law as a whole in its international and European legal context followed by fresh legislation.
In particular, we note that the Consultation document recognises … that a fundamental problem with current UK designs law is that it is unduly complicated, yet it fails to make proposals which will significantly alleviate this problem. It is nothing short of ridiculous that a single design can potentially be protected by five different types of right (Community registered designs, Community unregistered design rights, UK registered designs, UK unregistered design rights and copyright)”.
The Modern Law of Copyright and Designs, which I am sure is at the bedside of the Minister, states:
“There is no reason why a proprietor should not claim design right in all aspects of the shape or configuration of his article which he believes could give him a commercial edge over his competitors.
In particular, when it comes to suing a competitor for infringement he will be well-advised to rely, individually and collectively, upon each of those separate aspects of shape or configuration which appear to have been copied by the competitor.
Needless to say, a statutory monopoly which allows the proprietor to mix and match in this way and which deprives a potential infringer of any way of knowing the scope of the exclusive rights which he faces unless and until the proprietor defines precisely what are alleged to be his design rights is ripe for abuse”.
Finally in this overview, Lord Justice Jacob stated in a case in 2006 that:
“UDR can subsist in the ‘design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article’. This is extremely wide—it means that a particular article may and generally will embody a multitude of ‘designs’—as many aspects of the whole or part of the article as can be. What the point was of defining ‘design’ in this way, I do not know. The same approach is not adopted for ordinary copyright where the work is treated as a whole”.
I make these points at length as they are important for the context of some of the debate we will be having on these earlier groups, which are largely around two aspects of the Government’s proposals. The first is, why have they chosen to pull back from the decision they originally had in mind during the consultation exercise to abandon the unregistered design right, or at least combine it with the community unregistered design right, a measure that would at least have some logic to it? They have chosen not to do so and we wish to probe that. Secondly, why is there tentativeness in their proposals to try to provide a commonality of approach between the registered and unregistered design routes?
A registered design has a ring to it because those in authority have seen, opined upon and sufficiently thought well of the design presented to them that they have registered it, much in the way that a small “c” with a circle around it has denoted copyright. The truth is that a registered design is nothing of the sort and seems to be a mainly bureaucratic exercise. The article has not been made but the design is registered simply on the basis of a submission and payment of a fee to the registry. I simplify to make the point but that is the essence of it. At the same time, and organically, the unregistered design right has grown up over the years and has provided a sensible and appropriate way, particularly in design industries such as fashion, effectively of securing a monopoly power for people to use in a way that will allow them to get a return on the investment of their creativity and money.
Our amendments are trying to help the Government in the sense that if the UDR is retained it would be a half-way point, as I have hinted, to combining it more closely with EU design law. I should be grateful for responses from the Minister on that. In support of my suggestion, I simply provide two more quotations. On the question of whether one should think about combining across Europe a single unregistered design process, the FICPI has stated:
“We believe having different eligibility requirements is complicated and not appropriate when IP is generally handled in a European policy framework ... we would prefer to see more radical harmonisation with EU design law to introduce the tests of novelty and individual character, rather than retaining different tests”.
These are points to which we will return in later amendments. The Chartered Institute of Patent Attorneys agrees that,
“clarifying and limiting the current protection for any ‘aspect’ of the design of a ‘part’ of an article would reduce the tendency to overstate the breadth of UDR”.
The Government have come forward with the proposals that underlie the first part of the Bill. Previously in the consultation, they had suggested that there would be a considerable advantage in reviewing and simplifying the design area. That started with the Hargreaves report, which pointed out the complexity to which I referred. Instead, we have proposals that are much the same as before but with a few minor changes. We are not getting the sort of clarity that would help the industry to support the growth in our design capacity, contribute to our creative economy and improve the economic prospects of this country. The essence of these amendments is: why are the Government not considering modifying the test for infringement at least to be aligned with the community unregistered design right? I beg to move.
The Deputy Chairman of Committees
I should advise the Committee that if this amendment is agreed, I cannot call Amendment 2 by reason of pre-emption.
Lord Clement-Jones
My Lords, I am sure that the noble Lord, Lord Stevenson, was only trying to be helpful with his first amendments but, from the word go, he has a certain way of frightening the horses. The reaction to his amendment by the design community, perhaps apart from the seven professors who lurk in the background to these and similar amendments tabled by the noble Lord—I am glad to say that we firmly rejected their wise advice on the Enterprise and Regulatory Reform Bill—is that this is a last-minute change to emasculate unregistered design right, which is relied upon by almost every designer, as opposed to registered design. The noble Lord knows the scale of the use of unregistered design rights; more than 100,000 designs annually are protected by them, whereas only some 4,000 are protected by registered design. The whole purpose of unregistered design is to be analogous to copyright. That is what UK unregistered design right is about. It is very long established. The term for unregistered design rights is of course much shorter than for copyright, which was always the intention. However, the noble Lord’s amendment is extremely radical. I am sure that he does not really believe that this is the right way forward. I heard what he said about the Government's approach being merely piecemeal, but this is utterly fundamental at this stage.
I hope that the amendment is purely provocative and designed to have a debate but the noble Lord should know that many individual designers up and down the country would be absolutely horrified if the amendment passed and if unregistered design right did not have the scope that it now has. I will not go into the way in which the test is put forward in terms of whether it is world wide or original and what sort of protections are given. It is sufficient to say that in almost every respect small independent designers would be disadvantaged by the amendment.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)
My Lords, at the outset of Committee, it may be helpful to remind everyone why the Bill is important. The measures in the Bill support business in driving economic growth and innovation by encouraging enterprise and expanding the range of economic sectors in the UK. Absurd maze or not, the designs and patents measures in the Bill will deliver many of the remaining commitments from the government response to the Hargreaves review of intellectual property and growth, which the Prime Minister commissioned in 2010.
The Bill will achieve three things. First, it will make it easier for business to understand what is protected under design and patent law, providing greater certainty for investors and reducing costs for business. Secondly, it will strengthen IP protection, including through the introduction of criminal penalties for copying UK registered designs. Thirdly, it will make the international and European IP system work better, helping UK business to be successful abroad. These measures will help our vitally important IP-intensive businesses and I look forward to the chance to debate the detail over the course of this Committee. I appreciate the sentiments expressed by the noble Lord, Lord Stevenson, and I look forward to continuing to engage with him and all other noble Lords on the substantive and other issues raised during our consideration of the Bill.
Amendment 1 would change the legal definition of the UK unregistered design right to mirror that of the EU Community design, as set out in the Community design regulation. The result would be harmonisation with the European design right. Although I accept that the measure would simplify the design legal regime in the UK, the change would not be welcomed by the UK design industry. I am most grateful for the support given by my noble friend Lord Clement-Jones on that.
There was almost complete support for the retention of the UK unregistered design right, in its current form, in response to the Government’s consultation. In particular, this was due to its application to some functional designs, for which the UK design right is unique. The result of this amendment, changing all elements of the current definition of the UK design unregistered right apart from its duration, would be unpopular with many parts of the design industry, because many of its designs would lose their protection.
Amendment 7 would harmonise the conditions of UK unregistered design infringement with EU law, as set out in the European directive and regulation. These are also the same conditions that apply to the UK registered design. This would be a fundamental and significant change to the application of unregistered design law in the UK. Since its introduction in 1988, a considerable body of case law has built up relating to the infringement of unregistered designs, one of the leading cases being PepsiCo v Grupo. Businesses and the legal profession have also spent a considerable amount of time in building a clear understanding of this case law.
More fundamentally, the Government are concerned about the effect that the change would have in altering the way in which infringement of the UK unregistered design is determined before the courts. The current test has been interpreted narrowly in a number of leading cases. This is in contrast to the test applied in EU law, which is potentially wider in scope. It would be troubling indeed if the change meant that existing designs were suddenly subject to infringement actions from which they were previously free. Furthermore, while the wider scope of the EU unregistered right may be justified given that it has a lifespan of only three years, the Government consider that it would be inappropriate for a right that lasts up to 15 years, as is the case with the UK unregistered design right, to enjoy wider protection. There would be serious concerns about the effect of this on innovation.
The noble Lord, Lord Stevenson, asked what the Government are doing generally to align EU and UK rights. The Government are seeking, through this Bill, to align design rights wherever possible—for example, through the changes proposed to amend the rules on commissioning and defences to infringement as a general clause. The noble Lord also raised some general points on the Government’s proposals in the Bill and their decision not to go for wholesale reform. We listened carefully to stakeholders, who told us that there was value in both the formal registered right and the less formal unregistered right, which enable certain businesses that work in fast-moving fields, such as the fashion industry, to enjoy the right protection for them. On the basis of the arguments presented, I ask the noble Lord to withdraw his amendment.
Lord Howarth of Newport
Perhaps I may probe the noble Lord a little further on his views on what the optimum period for protection for design rights ought to be. It seems to me that, as a principle, protection of intellectual property ought to be for the minimum period consistent with encouraging innovation. There is a very large difference between the position in the European Union and the position under UK law. If the European Union provides protection for up to three years and under our own domestic law we provide protection for up to 15 years, that is a huge discrepancy. Will the Minister help us to understand the Government’s thinking on what really would be the optimum period of protection? Fifteen years seems a very long period. I appreciate that there are all sorts of situations and all sorts of varieties of design, and that longer protection may be more appropriate for some than for others, but what does he think should be the guiding principle?
Viscount Younger of Leckie
I thank the noble Lord for that quite technical question. It is true that there is a clear discrepancy between three and 15 years. I think that it would be best if I write to the noble Lord and copy in other noble Lords with a substantive answer to clarify precisely how these time periods were arrived at and to give some background information on how they came about. I think that that is the best way forward.
Lord Borrie
Perhaps I may pursue this a little further. At Second Reading, I raised the point that in terms of intellectual property the grant of copyright or the grant of registered or unregistered design can result in a big improvement in competition. It encourages creativeness and innovation and it encourages the emergence of new competition. On the other hand, competition generally—meaning competition of new and old, old and new—surely means, to re-emphasise the point made by my noble friend Lord Howarth, that if because of the 15 years or any other substantial period general competition is confined and there is no competition for a particular design or copyright area, then the period is too long. In all the studies that have been made, including Hargreaves and so on, I wonder whether the rather vital matter of whether it should be 15 or 10 years or whether it should be so many months has been considered and reconsidered afresh in order to see how applicable these periods of time are for the future.
Lord Brooke of Sutton Mandeville
My Lords, in pursuance to what my noble friend said immediately before the noble Lord, Lord Borrie, intervened, would it be possible, in the interests of completeness, if all those who are currently present in Grand Committee were to get a copy of the letter that my noble friend sends to the noble Lord, Lord Howarth?
Viscount Younger of Leckie
I thank my noble friend for that comment. I think that I said earlier that I would copy in all noble Lords who are in Committee. I can certainly confirm that. The noble Lord, Lord Borrie, made some valid comments. Again, they are on quite a technical question and aligned with what the noble Lord, Lord Howarth, said. It is a difficult equation to get right because there are so many variables. I imagine that it would depend on the type of product being considered; I am sure that there are various other variables. It is therefore better to write a substantive response to cover all these issues. Existing protections have worked for many years and industry seems content with 15 years and, indeed, with three years. Having said that, I accept that there is a discrepancy between the two. In relation to the unregistered design right, a mark has to be copied, but I think the answer is that your Lordships who are in the Committee deserve a full reply. I would be interested to learn more myself.
Lord Stevenson of Balmacara
My Lords, with his usual incisiveness, the noble Lord, Lord Clement-Jones, immediately spotted what I was up to. Far from frightening the horses, which is not in my nature—it may be the first time that that appellation has ever been suggested, as it is usually the other way around, with me running away from the horses—my point was to try to get up a debate about some of the underlying themes. We have just had that, so there has been success.
I would cavil at only a couple of the points made in the initial response. I did not entirely rely on professors, wonderful though they are in supplying us with information. I quoted extensively from the Bench. I would not want in any sense to choose between the two contributions, but I think that their sum was rather powerful. I simply lay that on the table.
The noble Lord, Lord Clement-Jones, ended on an interesting point, which is that it is true that, when analysed back, the unregistered design right is in essence copyright by another name. However, it provides in the design production capacity the same sort of protections that we were debating on the ERR Bill in relation to 3-D objects, which the Government have taken powers to turn away from. I think that, under that design regime, copying more than 50 of an artistic design that was turned into a 3-D object and manufactured gave protection for 25 years. I might be getting mixed up between the rights. Yet that 25-year period has been replaced by the life of the designer plus 70 years. One could ask, but one would immediately run up against the points made by my noble friend Lord Howarth, why they have chosen to retain the design approach—a limited period of five years then five years, plus a further five—for unregistered designs and not taken what might be the logical step of saying, “If it is copyright by another name, why did we not move that way for the whole of this area?”.
Lord Clement-Jones
Perhaps I can help the noble Lord. Your Lordships may remember that the Section 52 debate during consideration of the ERR Bill was about works of artistic craftsmanship. There is a difference between the generality of design rights and those particular works covered by the items that the noble Lord is discussing.
Lord Stevenson of Balmacara
I thank the noble Lord for that intervention, but I think that that is the point I am trying to make. We are dealing with particular aspects of the design industry, which under this Bill is the production of individual designs that may or may not lead to products being created. However, the point made in the Section 52 debates—they became something else and were not on Section 52, but we know what we are talking about—was about a system of providing what my noble friend Lord Howarth said was missing in all our debates. What is the minimum period consistent with supporting innovation? Do we think that it lies more in the region of short terms such as five, 10 or 15 years, or even three years? Is that sufficient time to earn the return back on a particular artefact? I agree with the Minister that obviously it depends on the artefact. Alternatively, are we saying that any activity involving the production of original creativity deserves a period of the life of that designer plus 70 years? The two do not run together well.
Although the Minister has kindly said that he will write, this deserves more of a debate and discussion, possibly outside the confines of this Bill, so that we as a country think hard about this stuff, because we do not act alone. We are obviously straining to provide certainty and satisfaction in these areas for those who live and work in the United Kingdom. To a limited extent, that is extended to the European Union—and, in a particular measure on patents, to others affected by international treaties. But we are mainly talking about a UK arrangement that cannot extend beyond our borders and certainly does not run in other countries involved in copying or making articles that may or may not have a resemblance sufficient to warrant intervention through our legal processes, when they are brought back and sold here, as designs that originated here.
I do not think that we have got to the heart of this issue in this debate, which is a pity. The Minister was using the argument that the Bill was in part a completion of the Hargreaves recommendations but, as I said at Second Reading, Hargreaves did not take us to some of the conclusions in the Bill; he was very careful in many cases to point out that there were problems in the area and to suggest that more work was required before any Government could get down to it. At the very least, there had to be an overall review, which we have not had.
The UDR in this form is copyright-lite. It is being amended in a minor way and is of course the preferred choice. In some sense, that sends a message that we should be asking why designers think that the UDR is better than the design right, or anything else that is around. Somehow the system has to match the tests properly set by my noble friend Lord Howarth, which equates in some way to the need for a fair return without stifling the sort of innovation that my noble friend Lord Borrie talked about as being at the heart of this competitive industry.
I have said enough. I wanted this debate to get off the ground and I am grateful that we have had it. I beg leave to withdraw the amendment.
“(b) at the end insert—“( ) In this section “qualifying country” means—
(a) the United Kingdom; and(b) another member state of the European Economic Area.””
Lord Young of Norwood Green
My Lords, let me reassure the noble Lord, Lord Clement-Jones, that I am not big enough to frighten the horses—a small group of chickens, maybe, but that is about it.
The benefit that we have in this Committee is that we can probe, which is what we are seeking to do, not to be obstructive or negative but genuinely to probe areas that are complicated, as the Minister himself recognises. My apologies for the length of the contribution, but it is meant in a constructive and positive way.
The amendment is a probing one, designed to understand the nature of the change and the reason for the meaning of “qualifying country”. The definition of the current UDR has come in for substantial judicial criticism. In Dyson v Qualtex, Jacob LJ referred to the existing wording of CDPA Section 213, subsections (1) to (4) and observed:
“It has the merit of being short. It has no other”.
That could be a description of myself. He went on,
“Jonathan Parker J. considerably understated the position, when he said ‘regrettably, the drafting of s.213 leaves much to be desired’. (Mark Wilkinson Furniture Ltd v Woodcraft Designs (Radcliffe Ltd) (1998 F.S.R. 63 at p.27). It is not just a question of drafting (though words and phrases such as ‘commonplace’, ‘dependent’, ‘aspect of shape or configuration of part of an article’ and ‘design field in question’ are full of uncertainty in themselves and pose near impossible factual questions). The problem is deeper: neither the language used nor the context of the legislation give any clear idea what was intended. Time and time again one struggles but fails to ascertain a precise meaning, a meaning which men of business can reasonably use to guide their conduct. The amount of textbook writing and conjecture as to the meaning is a testament to its obscurity”.
At present, Section 213(4) states:
“A design is not ‘original’ for the purposes of this Part if it is commonplace in the design field in question at the time of its creation”.
There is a nice bit of tautology for you.
Lord Clement-Jones
I need to declare an interest as a member of the Law Society and of the City of London Law Society, because the noble Lord, Lord Young, is probing a very interesting point here. The Law Society itself, as well as the City of London Law Society, makes a rather similar point. Noble Lords may be glad to hear it in a slightly shorter form. I shall read it out.
“The society remains concerned that the proposed amendment puts UK businesses at a competitive disadvantage since it will require the UK to provide protection to entities based in overseas jurisdictions even when those jurisdictions do not offer reciprocal protection to UK entities”.
The society suggests that this is remedied in the Bill. There are similar points there. Obviously, the noble Lord, Lord Young, went into much more detail, but that is the underlying concern in all of this.
Viscount Younger of Leckie
My Lords, Amendments 2 and 5 address various points in relation to the qualification criteria in the Bill. I will first turn to Amendment 2, which would change the definition of qualifying country in relation to the meaning of “original” in Section 213(4) of the Copyright, Designs and Patents Act 1988.
The amendment would change the definition to the United Kingdom and European Economic Area. In practice, that will mean adding Iceland, Liechtenstein and Norway to what is currently proposed and removing a number of countries—I hope that noble Lords will bear with me and not succumb to slumber as I read the whole list. Those that would be removed are: Anguilla, Bermuda, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Channel Islands, Falkland Islands, Gibraltar, Hong Kong, Isle of Man, Montserrat, New Zealand, the Pitcairn Islands, Henderson, Ducie and Oeno Islands, St Helena and Dependencies, South Georgia and the South Sandwich Islands and the Turks and the Caicos Islands.
The amendment would mean that the geographical areas used in the definition of “commonplace”, which is under debate here, and “qualifying country”, which is in Section 217(3) of the Copyright, Designs and Patents Act 1988, would be different. This would create an anomaly in the Act and a level of complexity, which the Bill, on principle, is trying to remove.
I would like to pick up on some points that the noble Lord, Lord Young of Norwood Green, made because he asked for and deserves a more substantive answer on the reasoning behind the decisions that we made. Aligning the geographical coverage and qualification is a logical harmonisation. Legal rights should be subject to the same eligibility tests wherever they arise. Otherwise, examples of unfairness would occur. It will make it easier for a person to know whether they qualify for an unregistered design right and it will help to resolve disputes more quickly. It will be easier for businesses and users to understand how they can qualify for an unregistered design right.
Furthermore, I want to explain why the Government were consulting on changing the definition of “commonplace”, as in Clause 1, to cover the whole of the EEA, even though the Bill is only amending coverage in the EU. Following the consultation and on further reflection, the Government came to the conclusion that an additional layer of complexity to the law would be created in the eligibility criteria for design right if the geographical areas were different for the definition of “qualifying country” and for “commonplace” to which the noble Lord alluded.
Similarly, Amendment 5 would introduce a new definition. It proposes a change to the requirements for businesses that qualify for unregistered design right, specifying that the business must have,
“a real and effective industrial or commercial establishment”,
in any qualifying country.
The current definition of a business that qualifies for the UK unregistered design right includes the requirement that it must carry on a,
“‘substantial business activity’” in a qualifying country”.
The term “substantial business activity” is already used elsewhere in the Act—for example, for qualification criteria for copyright performances in Section 206. The term is not defined in the Act, but does not appear to have been the subject of significant case law, which suggests that the term has not caused problems in practice.
Although the wording suggested in Amendment 5 has its basis in EU law, the Government believe that to introduce this term into UK law could create confusion and uncertainty about the qualification criteria for unregistered design rights. The Bill is trying, where possible, to reduce complexity in the law. The Government believe that these amendments would lead to additional complexity, not reduce it.
The noble Lord, Lord Young of Norwood Green, asked whether there was a definition of “commonplace”. There is no statutory definition in terms of its meaning. However, the word “commonplace” has to be tested objectively in the design field in question. The case of Fulton v Totes puts a gloss on the meaning of the territorial extent of “commonplace”, suggesting that the UK market is relevant. Therefore, the Bill seeks to clarify the territorial scope of the definition of commonplace and align it with qualification requirements. I ask the noble Lord to withdraw his amendment.
Lord Young of Norwood Green
I thank the noble Lord, Lord Clement-Jones, for his contribution, which, in a much more succinct manner, referred to the two key objectives—if we could achieve them—of coherence and ensuring that this legislation does not lead to a UK-business disadvantage. I thank the Minister for his reply but, given the range of his response, I wondered whether, in relation to the criteria that one is trying to establish—not making things more complex than they already are—any registered or unregistered design right had ever emanated from the Pitcairn Islands. No doubt the Bill team can give us that information at some point.
To be serious, we will reflect on the Minister’s answers and, in the mean time, I beg leave to withdraw the amendment.
Lord Young of Norwood Green
Noble Lords will be relieved to know that this will be a much briefer contribution.
In their consultation, the Government stated that they would introduce safeguards and transitional provisions for third parties which had commissioned designs, but they failed to do so. This amendment would require the Secretary of State to introduce transitional provisions for commissioned designs for a period of six months after the Act comes into force. Clause 22 allows transitional provisions to be brought forward, but this is an issue of considerable concern in the design community and it seems right for this provision to be in the Bill.
In the consultation document, the Government raised the question of whether there should be “statutory” safeguards for commissioners for a transition period. Why the change? Why not have this on the face of the Bill? The consultation document also acknowledges the concerns about changing the status quo and says that,
“the IPO will work with bodies representing and promoting designers, as well as IP legal advisers to publicise these and other changes to the law, and their potential impact”.
It expresses the view:
“This should help alleviate some of the concerns about this change in particular”.
Can the Minister say what progress has been made with this laudable initiative and with whom the IPO has been working, and can he give us an assessment of the IPO’s success in alleviating the concerns that it recognises exist in this area? If this work has not yet started, can he outline the proposed programme and the time it will be likely to take? I beg to move.
Lord Howarth of Newport
My Lords, I have one question for the noble Viscount. In legislating to effect this change, how does he intend to secure the position of people who have commissioned designs? They have invested capital and made an important personal commitment to commissioning a design. In future, the design right of that design is to be vested in the designer and not the commissioner. I do not object to that in principle but I should be grateful if he would clarify how the commissioners’ interests are to be secured in this new situation. Is it to be by way of contract between the commissioner and the person he employs? If so, what ought the commissioner to stipulate in the contract of his employee? However, supposing that the designer is freelance or an independent contractor, how strong will be the protection for the entrepreneur who has commissioned the design and whose interests I think none of us would want to see neglected?
Viscount Younger of Leckie
My Lords, Amendments 3 and 9 address the transitional provisions associated with the changes to ownership of designs, as set out in Clauses 2 and 6.
I will first turn to Amendment 3, which seeks to amend Clause 2 on ownership of unregistered designs. The clause as drafted changes the default ownership requirement for commissioned designs from the commissioner to the designer, as the noble Lord, Lord Howarth, emphasised. The clause does not apply retrospectively, and designs created before commencement are therefore not caught by the change in the law.
In addition, an exception is made for designs created after the commencement date but under a contract that was entered into before the date of commencement. This recognises that certain enabling contracts would have been entered into before the change in the law and reflects the legal conditions in existence at the time. The Government believe that these exceptions will protect existing contracts and provide businesses currently entering into contracts with adequate time to adjust to the law.
The Government also recognise that this change is significant for the design industry and that raising awareness will be important. I hope to reassure the noble Lord, Lord Young, and all noble Lords that the Government will therefore work with stakeholders to ensure that they are aware of the change before the law comes into force. The Government will ensure that there is sufficient time to educate businesses before the commencement of this clause.
Amendment 9 proposes similar transitional arrangements in respect of Clause 6, relating to ownership of registered designs. The Bill includes provisions in Clause 22 that are broad enough to permit appropriate transitional arrangements to be put in place as and when the relevant parts of the Bill are enacted. These can be used in relation to Clause 6, and the Government therefore believe that this amendment is not necessary.
The noble Lord, Lord Howarth, or perhaps it was the noble Lord, Lord Young, asked what progress was being made in educating business. My officials have been working with stakeholders such as design and legal representatives for some time. We will continue to work through them as we take the Bill forward.
The noble Lord, Lord Howarth, raised an important point about how one might protect the commissioner, as opposed to the default position of the designer. In response to the issue of whether the commissioner should own the rights automatically, we believe that ownership should be a matter of contract. The noble Lord is correct. It is a matter that businesses should decide upon as they commission designs.
As to the matter raised by the noble Lord, Lord Howarth, regarding the commissioner being a sole trader, perhaps he could clarify his point.
Lord Howarth of Newport
I was trying to probe as to whether there was some distinction between the position of a designer who is employed by the commissioner and the position of an outside contractor whom the commissioner contracts to produce a design. In either case, we must be concerned to ensure that the legitimate interests of the commissioner are not neglected in this transition so that the design rights do not in future lie with the commissioner but with the designer.
Viscount Younger of Leckie
The noble Lord again makes a good point. The default position is that it is down to the wording of the contract. However, having said that, I will write to the noble Lord to clarify what further protections there might be for the commissioners. As a matter of clarification, where a designer is employed, the employer will be the owner of the design. I hope that, in the mean time, this provides sufficient reassurance to the noble Lords, Lord Young and Lord Stevenson. I ask the noble Lord, Lord Young, to withdraw his amendment.
Lord Young of Norwood Green
I thank those who have participated in the debate. My noble friend Lord Howarth raised an interesting point about the balance of rights between the commissioner and the designer. We have had some explanation from the Minister, but I welcome the fact that he will write to us, too. The Minister also talked about working with stakeholders to ensure greater understanding in this area. Again, we would welcome more details of the nature of that work. I do not necessarily expect the noble Viscount to have the answer here, but perhaps he could let us know. Finally, we have been talking about contracts. Is there potential for an unfair contracts Act in relation to what we have been discussing? With those questions, I beg leave to withdraw the amendment.
“( ) For section 259 of the Copyright, Designs and Patents Act 1988 (joint designs) substitute—
“Joint designs
(1) Where two or more persons have jointly developed a design, design right shall vest in them jointly.
(2) Where two or more persons are proprietors of unregistered design right or community unregistered design right, then, subject to the provisions of this section and subject to any agreement to the contrary—
(a) each of them shall be entitled, by himself or his agents, to do in respect of the design concerned, for his own benefit and without the consent of or the need to account to the other or others, any act which would apart from this subsection, amount to an infringement of the design right concerned; and(b) any such act shall not amount to an infringement of the design right or unregistered community design right concerned.(3) Subject to any agreement for the time being in force, where two or more persons are proprietors of design right or unregistered community design right one of them shall not without the consent of the other or others grant a licence under the design right or assign or mortgage a share in the design right or in Scotland cause or permit security to be granted over it.
(4) Where an article is disposed of by any of two or more proprietors of unregistered design right to any person, that person and any other person claiming through him shall be entitled to deal with the article in the same way as if it had been disposed of by a sole proprietor.””
Lord Stevenson of Balmacara
My Lords, this is more in the nature of a helpful suggestion than a probing amendment, although I would be grateful for comments from the Minister when he responds.
In their response to their consultation process, the Government rejected an earlier proposal to amend the Registered Designs Act 1949 to incorporate joint ownership provisions similar to those provided for unregistered design rights in the CDPA. However, they highlighted a related issue about how joint ownership should be treated and enforced and said that they would give greater consideration to the idea of introducing provisions similar to those that exist for patents, which would allow one party to exploit the design independently of the other. However, the Bill does not contain this provision, even though the consultation document states that the Government see merit in the proposal and that they intend to explore the option further. Will the noble Viscount explain what is happening? Is exploration continuing? If so, where have the intrepid explorers reached? May we have a status report on progress? To save a lot of time and fruitless further exploration, our amendment, which is loosely based on Section 36 of the Patents Act 1977, would, if accepted, introduce these provisions. We would like to debate whether the Government are now in a position to consider moving on this.
At present, the joint owners of a patent can each work the invention separately from the others, whereas joint owners of copyright cannot. There is no clarity as regards UK registered designs on this point. For unregistered design rights, Section 259 of the CDPA deals with joint designs and states:
“In this Part a ‘joint design’ means a design produced by the collaboration of two or more designers in which the contribution of each is not distinct from that of the other or others … References in this Part to the designer of a design shall, except as otherwise provided, be construed in relation to a joint design as references to all designers of the design”.
This would be helpful, although I think that in practice it means that the permission of all design rights owners are needed before one can exploit a design, which might be somewhat unsatisfactory and may need further consideration. Again, I would be grateful for the Minister’s response on that point. With that, I beg to move.
Viscount Younger of Leckie
My Lords, the suggested amendments to Clauses 2 and 6 would introduce detailed requirements to set out the legal position for joint owners. The proposed provisions would apply to unregistered and registered designs.
As noble Lords will be aware, the Government’s design consultation asked stakeholders whether the Registered Designs Act 1949 should be amended to incorporate joint ownership provisions similar to those already provided for unregistered design rights in the Copyright, Designs and Patents Act 1988. Although most respondents agreed with this in principle, responses were mixed when it came to the question of whether it was necessary. A number of well respected intellectual property judges who responded to the consultation suggested that existing provisions were sufficient to allow for joint ownership. In light of this and our exploration activities, the Government decided not to change the law in this area.
In addition to our considering it unnecessary at this time to change the law on the issue, there is a legal reason why we cannot accept the amendment tabled by the noble Lord. The amendments as drafted seek to amend or reproduce EU design rights. This is not possible under EU law, as EU regulations directly apply here and the ability of member states to take action is limited. As a result, it would not be possible for the Government to accept these amendments even if they wished to. In light of this, I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his response. I think we are agreed in principle that this is something that would be desirable but, contrary to earlier debates and discussions, he feels that the points made by the judges in responses are sufficient and that there is a way round this. I suspect that that is because he is relying on European legislative procedures, and that point is noted.
I accept that what we are proposing may not be satisfactory in relation to that but it still does not remove a lacuna in terms of the provisions for simplification of the processes that the Minister said were at the heart of the Bill. Having said that, I do not wish to pursue this further at the moment and I beg leave to withdraw the amendment.
Lord Clement-Jones
I make a brief intervention to give notice to the Minister that I intend to raise this at a future stage in the Bill. This matter came to my attention rather late in the day and I do not expect him to respond at this moment.
There is concern about the breadth of the definition in Clause 4, particularly proposed new Section 224A(b) with regard to,
“an act which is done for experimental purposes”.
The corresponding section in the Patents Act 1977 provides further clarification of what,
“done for experimental purposes”,
means. It relates to the subject matter of the invention. Proposed new Section 244A(c)(ii) should also clarify what “mention” and “source” mean.
A better proposal might be,
“the owner of the design right is identified during the teaching or as part of the citation as the case may be”.
It should be up to the person relying on his defence to prove that the owner of the design right was probably identified.
Unless the Minister writes to me in the mean time, I will probably raise these issues on Report. Again, I am indebted to the Law Society and I declare an interest.
“( ) In subsection (1), after paragraph (a) insert—
“(aa) in pursuance of an assignment or licence made or granted by a person who is the proprietor of unregistered design right or unregistered Community design right in a corresponding unregistered design or unregistered Community Design.””
Lord Stevenson of Balmacara
My Lords, again, this is a probing amendment that emanates from points made in the response provided by the Government to the extensive consultation carried out before the Bill was prepared. Section 53 of the CDPA currently states that acts carried out with the permission of the owner of a UK registered design do not infringe any artistic copyright that might also exist in the article in question. The Government are extending this to community designs but not to unregistered designs. The question therefore is: why is this happening? Can the noble Viscount explain why this decision has been taken and what its implications are?
It is worth recording that the proposal to apply the approach that I have just outlined to the unregistered design right was opposed by a number of respondents. The CIPA stated:
“Firstly, UDR and UK copyright are more or less mutually exclusive at present, so there is no real need for the provision. Secondly, we think it should refer only to registered designs and not unregistered designs, since the presumption arises from the public register which acts as prima facie proof of title”.
The ITMA stated that,
“a registered design is a monopoly right and unless successfully challenged on the basis of an earlier right such as copyright, remains a monopoly. This does not apply to unregistered designs so extension appears inappropriate”.
For completeness, the Government’s response states:
“Given the inherent distinction between UK unregistered right and UK copyright, it is not appropriate to extend the defence to cover UK unregistered right. The alternative of including the EU unregistered right within the defence would seem to add another point of difference, and therefore complexity, in dealing with UK and EU rights. Taking these points into consideration and, as another response mentioned, that the current defence arises through the public register which acts as prima facie proof of title, the Government does not intend to extend the defence to cover any unregistered rights”.
This is a not uncomplicated area and I therefore appeal to the Minister to provide the necessary clarity and lightness that will allow us to follow it through.
However, I should point out that the City of London Law Society, perhaps stimulated by the noble Lord, Lord Clement-Jones, who may wish to speak on this point, referred to the possibility of split ownership in relation to this issue. Indeed, the IP judges who we quoted earlier said that:
“The Consultation asks if there is any reason why section 53 should be extended to unregistered design right, but does not ask if there is any reason why not. Why should the logic be different, at least if UK unregistered design right continues to be substantively different to Community unregistered design right?”,
which of course it would under the Bill.
It seems that there is something in this. It can be unclear whether a design falls to be protected by copyright or unregistered design right. The boundary turns in part on whether the design is for an “artistic work” or for something other than an artistic work, which is rather a narrow point of difference. Identifying whether something is an artistic work such as a sculpture, which, as we now know, does not include a stormtrooper helmet from the “Star Wars” films but which might, I am told, include toy soldiers, engravings—including car floor mats—and works of artistic craftsmanship is a concept over which there is much confusion. This illustrates the points behind the difficulty here.
Section 236 of the CDPA states it is no infringement of UDR to do an act which infringes copyright. If ownership is in the same hands and a person has permission to use the unregistered design right but it turns out that the design is an artistic work, they infringe—although a court might fashion an implied licence with respect to copyright. If the ownership is in different hands, the same problem might arise and there would be no possibility of such a licence. The matter varies, too, with whether Community unregistered design rights are involved. Here there is a closer overlap, as there is no equivalent of Section 236 since a person can infringe both copyright and Community unregistered design right at the same time. One could imagine a grant of a licence to use Community UDR and then issues arising as to copyright infringement, especially as copyright remains national in character and ownership is more readily divided. We would be grateful if the Minister can steer us through some of the issues here and explain why the Government took the view they have. I beg to move.
Viscount Younger of Leckie
My Lords, the amendment seeks to provide an exemption against accusations of infringement of UK artistic copyright for UK and EU unregistered designs. Currently, Clause 5 extends the exemption only to registered Community designs. The amendment concerns the complex issue, which the noble Lord, Lord Stevenson, alluded to, of the balance between the rights of the assignee and the interests of the copyright holder. In general, the copyright holder is entitled to assert his rights against any infringement. However, Section 53 overrides that ability but is currently restricted to registered rights. The exemption is restricted to registered rights because they are in the public domain and therefore already open to public scrutiny and challenge, including by the copyright holder.
The exemption does not include unregistered rights because they are not open to public scrutiny in the same way, there is no official register of rights and therefore copyright holders do not have the same opportunity to see what rights are being claimed and to challenge those rights when they deem necessary. In light of this, the Government do not believe it is appropriate to provide an equivalent exemption of the kind suggested by this amendment.
The noble Lord, Lord Stevenson, asked whether we should just extend this clause to unregistered rights anyway. In addition to the public policy reasons already elaborated upon, there are also difficulties in ensuring that the exception is being applied correctly. For example, one of the conditions is that the person relying on the exception has to be acting in good faith on the basis of the registration. There is no registration for unregistered designs, so this condition cannot be fulfilled.
As a general point on the comments of the noble Lord, Lord Stevenson, Professor Hargreaves in his review of intellectual property identified the complexity of the designs legal landscape as a problem for business. There is an overlap between UK artistic copyright, which covers photographs, sculptures and paintings, and registered design, but sometimes permission is given to use one and not the other. The defence makes sure that businesses that have permission to use a registered design can defend themselves against accusations of infringement of UK artistic copyright. The noble Lord is correct that it is a complex area. I do not know whether I have shed any light on the matter but I ask him to withdraw the amendment.
Lord Stevenson of Balmacara
I thank the Minister for his comments. When we were debating some of the Hargreaves exceptions in the ERR Bill, I was at pains to try to draw out the Minister on various issues raised of a popular culture mode. In the exception on parody, I was able to suggest to him that he needed to update his knowledge of Gangnam issues. I almost demonstrated to him, but of course Hansard is not very good at picking that up. However, I still treasure the moment. I did not get much of a response and therefore thought that today I would try a different angle with a “Star Wars” reference, but again I am afraid he did not pick it up.
The “Star Wars” case was fascinating because it wound its way up through the various levels on what seemed to be a narrow point about whether you could claim that the helmet—I see the noble Lord, Lord Clement-Jones, nodding in his place; I am sure he would be able to enlighten us further on this point—created for the stormtroopers in “Star Wars” was simply a registered design or a sculpture. Coming from a film background, I can imagine even props as being of extreme artistic importance, and I can take the point both ways. I do not think the Minister responded to my jibe that this might be enough to get him going, so perhaps he can write to me.
I understand that the unifying theme here, if there is one, is that the Government wish to go with the market, as it were, reflect the UDR as the decision of choice of most designers and make that regime as simple as possible. As I have said several times, we are not doing our overall regime enough service if we ignore some of the points of comparability and dissonance that exist between registered designs and unregistered rights and the Community moves that are going forward. I would be grateful if the Minister could write to me on this point because this is something to which we might wish to return. I beg leave to withdraw the amendment.
Lord Young of Norwood Green
My Lords, in moving Amendment 10, I shall refer to Amendments 12 and 19 as well. Amendment 10 is quite simple. We would leave out subsection (3), which gives a Henry VIII power to the Secretary of State to amend the Act by order. Amendment 12 would implement the Delegated Powers Committee recommendation but goes slightly wider by requiring all orders under Clause 8 to be subject to affirmative procedure. Amendment 19 would also implement the Delegated Powers Committee recommendation, but it goes further by requiring all statutory instruments to be subject to the affirmative procedure. This was referred to in the recent report from the committee.
These amendments were laid before we had sight of that DPRR committee report, but the committee has drawn our attention to the Henry VIII powers contained in this Bill and, as good democrats, we should be careful of approving such powers without good reason. Indeed, the committee went a little further, saying that it would,
“expect to see some justification for the negative procedure”,
that the Government are proposing.
The committee is sceptical of the case put forward by the Government, saying that it detects,
“some inconsistency of approach between what is said in paragraph 8 of the memorandum and the explanations given in paragraphs 25 and 35 about the choice of … powers”.
It would be good to hear the Minister clear up that ambiguity.
The rest of the group, which we share with the noble Lord, Lord Clement-Jones, reflects the recommendation of the Delegated Powers Committee and proposes its solution to the issue, which is that it considers the case for negative procedure has not been made for orders under proposed new Section 15ZA, and that the affirmative procedure should apply instead. I look forward to the comments to be made by the noble Lord, Lord Clement-Jones, and beg to move.
Lord Clement-Jones
My Lords, the noble Lord, Lord Young, has encapsulated the argument pretty well. It merely takes a reading of the report from the Delegated Powers and Regulatory Reform Committee to see that, although on slightly different bases and for rather different reasons, it is not happy at all with negative procedure for either Clause 8 or Clause 11. In addition to the amendments tabled between us, I have some sympathy with Amendment 10 as well. I very much hope that the Minister will be able to give either convincing reasons for continuing with the negative procedure or will accept the fact that the committee has delivered a pretty strong opinion, particularly in terms of being able to amend primary legislation, and that therefore he will accept or put forward his own amendments to change it to the affirmative procedure in the case of both clauses. Simply reading the committee’s report is pretty persuasive by itself.
Lord Howarth of Newport
When the Minister comes to reply in a second, will he give the Committee some indication of the volume of order-making that he anticipates? If these orders are to be subject to the affirmative procedure, will we be meeting every Tuesday and Thursday afternoon?
Baroness Whitaker
I add to noble Lords’ wariness of this power. I have a particular question. It seems to me that a sweeping power like this is particularly inappropriate when, as the noble Lord, Lord Howarth, said, we must create a balance between protection and innovation. It is very hard to achieve that by a virtual fiat by the state. Why in this case does he want this power?
Viscount Younger of Leckie
My Lords, Amendments 10, 11 and 12 would require regulations made under the power of Clause 8 to be subject to the affirmative resolution procedure. In addition, Amendments 18 and 19 would require regulations under the power of Clause 11 to be subject to the affirmative procedure.
Noble Lords will have had the opportunity to consider the report of the Delegated Powers and Regulatory Reform Committee, which was published on 6 June. While the committee accepted the majority of the delegated powers included in the Bill, the report recommended that the powers included in Clause 8, which concerns the Hague agreement, and Clause 11, which relates to the design opinions service, should require the affirmative procedure. I very much welcome the committee’s report and the time that its members have dedicated to scrutinising this Bill. The work of the committee is very important in ensuring that the implications of legislation are fully considered, and I wish to put on the record how much I value its detailed consideration of the Bill.
The report was published only two sitting days ago, so I hope that noble Lords will allow me a little more time to discuss with my colleagues across government the committee’s very worthy proposals in the appropriate level of detail that the report deserves. I have listened very carefully to all comments made this afternoon by noble Lords and I am certain that this issue will be returned to on Report.
The noble Lord, Lord Young, asked why there was a difference of approach with regard to negative versus affirmative resolutions. Traditionally, regulations in design law have been commenced by negative resolution, including in relation to a similar international agreement—namely, the Madrid protocol, which the noble Lord may be aware of. However, at this current time, I hope that I have given certain reassurances and I ask the noble Lord to withdraw his amendment.
Lord Young of Norwood Green
My Lords, I welcome the assurance given by the Minister. In the circumstances, it is perfectly reasonable that he requires a bit more time, and I therefore beg leave to withdraw the amendment.
“( ) The Secretary of State will, within six months of the Act coming into force, report to both Houses of Parliament on plans to publicise changes to the law introduced under this provision and help educate holders of design rights.”
Lord Stevenson of Balmacara
My Lords, this follows on from the discussion that we have been having in relation to the willingness of the Government for the United Kingdom to join, in its own right, the Hague agreement. It refers to the fact that in the consultation process the majority of respondents were in favour of the UK becoming a member of the Hague agreement in its own right. In a sense, that is very good because, as I understand it, the Hague agreement will be a very effective way of progressing the ability of those who originate materials and wish to earn from them to secure that right across territories and, increasingly, across the world, as the agreement is not limited to the United Kingdom or indeed to the European Union. Therefore, it is an important step.
However, as was pointed out by one of the respondents, the UK simply joining the agreement in its own right may not be sufficient to take the trick in this area, as the agreement is very little known and there would be a steep learning curve. The Government agree that there is work to be done here and they have confirmed that the IPO will work with a range of interested parties to publicise these and other changes to the law. Our amendment would put a little weight behind that by giving the Government a six-month window in which to get their show on the road.
As with a previous amendment, I wonder whether the Minister could put some flesh on what the IPO intends to do. I understand from some of the documentation we have seen that there is regular contact with designers, representatives of the design professions, and legal and other advisers. However, this is something where a bit more hearts-and-minds activity is required, and it would be very helpful if, in responding, the Minister could, as I said, put some flesh on that by explaining what is going to happen on the ground. I beg to move.
Lord Howarth of Newport
My Lords, I am grateful to my noble friend Lord Stevenson for raising what I think the Committee will agree is a very important issue. Intellectual property law is infernally complex and difficult. It is labyrinthine, as my noble friend remarked a little earlier this afternoon. For the businesses that the Government rightly seek to assist through this legislation, there are real difficulties in understanding the law.
It is of course a long-standing principle that ignorance of the law is no excuse. However, the department will of course want to facilitate a good understanding of the law. It would be helpful if the noble Viscount would unfold his thinking to us about how this is actually to happen. Does the Secretary of State for Business, Innovation and Skills have the address of every business in this country, including sole traders and the myriad little businesses that come and go, perhaps entering different incarnations, which are very hard for anybody to trace? Of course he does not. Perhaps he expects them to have recourse to the websites of the business department and the IPO: is it envisaged that those websites should provide an encyclopaedic account of intellectual property law? I imagine it is not, although I am sure that the IPO, not least through the opinion service that this Bill legislates for, will always do its best to help people to understand the law as it may apply in their circumstances, and to know what opportunities the law creates for them.
My noble friend referred to the design professions and their representatives. However, I do not think anybody can be confident that the design professions necessarily represent perfectly everybody who practises in the relevant fields. Hard-pressed business people operating from day to day will often find it pretty difficult to know the rules of these very complex games. This debate is useful because government ought always to reflect on the practical impact of their legislation on those whose lives and businesses it will affect. As I noticed and readily acknowledge, the purpose here is to give assistance to business. However, the task of enabling small traders to steer their way through this labyrinth, small and medium-sized enterprises in particular, is massive. I am grateful to my noble friend for tabling this amendment and look forward very much to the Minister telling us a bit more about how the Government see this working in practice.
Viscount Younger of Leckie
My Lords, this amendment would place a duty on the Secretary of State under this provision to report to both Houses of Parliament six months after the commencement of the Bill. The aim of the report would be to notify Parliament what plans the Government had put in place to educate business users about the changes to the law this clause brings about.
I agree with what I believe is the principle behind this amendment: that when changes to the law are made which could impact on businesses or consumers, the Government should provide guidance to users. The Government have already engaged with all key stakeholders through their consultations on the changes now set out in the Bill. I am grateful for the words from the noble Lord, Lord Stevenson, who mentioned that he was aware of this.
This engagement continues as the Bill progresses through Parliament. In addition, the Government will be producing a plain English guide to the Bill, particularly aimed at small and medium-sized businesses, which will be issued before Report. The Intellectual Property Office continues to work through the representative bodies for the design sector to ensure that their members have the guidance they need on the new legislation, if it comes into force.
The noble Lord, Lord Howarth, asked how we can further penetrate the myriad businesses that may be affected. In the letters that we have pledged to write, we will add some information on publicity and distribution, which I hope will be helpful. He also asked further about this issue. I can reassure him that over the past year, almost 18,000 businesses benefited from face-to-face advice from the Intellectual Property Office, which also used online engagement extensively. I am proud to say, as the IP Minister, that it now has 18,000 Twitter followers, more than any other intellectual property office in the world.
The noble Lord, Lord Stevenson, asked whether we could provide more information on what plans there were to educate as well as to inform business. These plans will build on the extensive work that the Intellectual Property Office already carries out through its business outreach programme and through schemes such as the training for business advisers across the UK. I hope these answers help to give some substantive responses to the questions raised by the noble Lord, Lord Stevenson, and the noble Lord, Lord Howarth.
The Intellectual Property Office, on behalf of government, already reports on the support and guidance that it provides to businesses through its annual corporate report and chief executive’s report. Therefore, the Government are not persuaded that a commitment to Parliament to report on this specific area of business support needs to be set out in the Bill. Accordingly, I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his contribution and my noble friend Lord Howarth for making additional points in relation to the proposal in the amendment. Behind this short debate lurks the proposal later in the Bill to have an annual report to Parliament on IP work, and it is helpful that the Minister finished on that point. To anticipate that debate, we will be arguing that to draw the report in the rather narrow terms currently specified in the Bill may be too tight, so perhaps we can come back to this issue when we get to that clause because the recent exchange gave us examples of that. It would be helpful to have a better understanding of how engagement with the wider group involved in the creative industries and in design, in particular, is going. Simply reporting on the economy and growth will not get across that engagement in sufficient detail, so this may be something to which we will return.
This matter also raises whether, as was argued during our discussions on the ERR Bill, having an IP Minister is sufficient in relation to intellectual property work and the support of the creative industries more generally or whether something more grandiose than even a noble Viscount, such as a tsar, will be required. I can see the noble Viscount reaching out across Whitehall and drawing things together much in the style of the films of Eisenstein.
Lord Stevenson of Balmacara
I was not going to mention Ivan the Terrible in particular, but there are other tsars of recent memory who would have been as effective, without necessarily all the killing, in getting people to understand what is important about intellectual property and in thrilling them with the opportunities that I am sure will flow from the Hague agreement.
The idea that somehow the IPO, however many thousands of Twitter followers it has, can do this with 140 characters per tweet does not fill me with enthusiasm. This needs engagement on a much greater scale, as has been mentioned. We will return to this issue, so I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, this is a probing amendment and it perhaps goes from the sublime to the ridiculous in the sense that we are moving from the sunny uplands of growth and the contribution to our economy that will flow from a better understanding of the creative industries, better engagement and the recruitment of people to work in them to questions about whether design form DF12A should include a statement indicating whether any associated unregistered design right has been assigned by the same assignee. There is a point in this, again, emerging from the consultation process.
In the consultation, suggestions were made that the relevant form should include a statement indicating whether any associated unregistered design right had been assigned to the same assignee. There was also a suggestion that it might require an assertion about whether the assignment of a registered right to a non-resident national or a non-reciprocating country would also extinguish an unregistered design right, which would be a further step. These are aspects of a debate we have been having throughout this afternoon’s sitting of the Committee in which we are trying to understand better what makes people wish to use the UK unregistered design right and not the UK registered design right. There are good reasons, we have heard them and, to a certain extent, I think we understand them, but it is still intriguing how, by the backdoor, a copyright-style approach has become the preferred choice. The noble Lord, Lord Clement-Jones, gave us the figures earlier.
Lord Clement-Jones
My Lords, it may seem somewhat of an anticlimax to come to these two amendments after visions of tsars and Alexander Nevsky crossing the ice, and so on. However, Amendment 15 is rather elegant, and I support it in principle. My friends at the Law Society would certainly find it an elegant solution. They say, under Clause 9(1), that the assignment of an unregistered right—very much as the noble Lord, Lord Stevenson, put it—
“need not follow the corresponding registered right (as is currently the case). The Bill should clarify whether the unregistered right is assigned to the same party, at registration of the assignment of the registered right. This will mean that under the new regime businesses can check whether an unregistered right has also been assigned to the same owner as the registered right, or whether they need to be aware of an unregistered right lying elsewhere”.
Amendment 15 achieves that aim. It is an extremely useful instrument, which would mean that there would be no doubt in future as to where the respective rights lie. It would be a source of some confusion if that was not known. This is a very interesting solution to something that will otherwise cause problems in future.
Lord Borrie
It seems slightly strange, to put this to my noble friend, that legislation which may have been in existence for many years specifies a particular form and what it should contain. That does not seem very appropriate.
Viscount Younger of Leckie
My Lords, Amendments 14 and 15 relate to the role of the registrar. I will first address Amendment 14, which would remove a power granted to the Secretary of State to specify circumstances where a document could not be inspected online, and the discretion in considering such cases.
Clause 9 is designed to allow users to access information on registered designs electronically whenever they want to—an idea fully supported by businesses in the recent consultation. There may indeed be circumstances in which publication of documents could cause harm, and it is in the interests of applicants to apply an exception in such cases. An example might be where material is commercially sensitive or otherwise confidential. Such exceptions are best made explicit in rules because they can be changed more easily and quickly to reflect the needs of business. The report of the Delegated Powers and Regulatory Reform Committee made no recommendations for changes in relation to the clause.
The power to make such changes will be limited to the circumstances that arise in this clause—for example, if the registrar’s opinion disparages any person in a way that is likely to cause harm or if material were considered immoral or likely to cause offence. This power will be subject to the general requirements of administrative law, and the scope of any rules relating to the registrar’s capacity to withhold electronic publication of documents will be subject to consultation.
I turn now to Amendment 15, which introduces a specific modification to an official form. It allows the registrar to give directions specifying that the form shall include a statement indicating whether or not any associated unregistered design right has been assigned to the same assignee. The Government recognise that this requirement might encourage businesses involved in such assignments to consider ownership of all the potential rights associated with their design, and it may help third parties to more readily track any changes in unregistered designs.
However, Amendment 15 places an additional burden on those seeking to register an assignment by requiring them to go through additional checks on the status of the unregistered design, to establish whether the unregistered right still exists or has expired, and whether it has previously been assigned to a different party. It could, in fact, delay updating the register if those details needed to be checked. Part of the rationale for removing Section 19(3A) was for records to be kept up to date more easily. It does not seem appropriate to require additional information to be supplied instead.
I hope that noble Lords agree that the sobriquet “Ivan the Terrible” does not entirely fit my character. The Intellectual Property Office is always seeking to provide the best service it can to its customers, which includes the amendment and deletion of official forms where these are proposed to the office. This is why Clause 12 on the use of directions removes the requirement to use secondary legislation in relation to forms and instead enables the use of directions, thereby mirroring existing powers relating to similar procedural matters for both patents and trade marks. To refer in the Act to a form in the manner described would undermine the purpose of Clause 12 and the wishes of stakeholders.
However, the noble Lord, Lord Stevenson, raised the issue of the huge majority of rights that are unregistered, which is a fair point. Perhaps there needs to be a better register with greater information included. We welcome these comments. We believe that as far as possible the register should provide more information. As the noble Lord knows, there is a balance to be struck between this and not placing too much burden on business.
In the context of these comments, I hope that the noble Lord feels able to withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, I thank the noble Lord, Lord Clement-Jones, for his support for my second amendment. My noble friend Lord Borrie warned me that he was going to raise this point, so I was not surprised and he is of course right. In an attempt to focus on an issue, we have become too specific in the amendment and I would accept the noble Viscount’s rebuke.
Nevertheless, there is an understanding, certainly in relation to the second amendment, Amendment 15, that there is a balance to be made that will be most effective and helpful in terms of those who wish to understand better where the rights lie in relation to an invention or design and the bureaucratic necessity that would follow. I am a little sad that the IPO felt, on balance, that the voluntary system, which could have helped to build up a register of some robustness and depth, was not taken up. However, I recognise that this is probably not the time to discuss that. Indeed, if we are to return to this issue, as we will at some time, we can further consider the matter. I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, this concerns a relatively minor point and it is certainly a probing amendment, to which I am sure the Minister will have no difficulty in making a response.
When reading the consultation process, we were intrigued to discover that the Government had consulted widely on whether appeal routes could be considered within existing systems largely through the patents county court or whether there was some value in transferring appeals to the High Court. This amendment is intended to probe that decision and to ask the Minister to respond a little more on it.
With the welcome news that a small but important part of the unified patent court will, it is hoped, be located in the United Kingdom and perhaps in more than one location, it would be to the public benefit if those who practised at this Bar or who were judges in the Bar were able to gain the maximum exposure to the issues that are likely to arise during consideration of the various points that will be routed through this legal process. My first point is simply a general feeling that more expertise should be spread around and that more people should be engaged, and that therefore cutting out the patents county court seems a rather odd decision.
Secondly, there is also a need to raise more public understanding on this matter. When court cases that involve these issues are picked up, they sometimes, as we discussed in relation to an earlier amendment, catch the public eye. That can sometimes help to get people interested in this whole area and stimulate them to become more involved. That is another reason for tabling the amendment.
Thirdly, we heard in earlier discussions, and when we were discussing this matter with the Minister, that the Bar is currently quite small and the court’s activities quite narrow. Therefore, the more court cases in which it is involved will gradually make this more of a sustainable option.
All those things suggest that perhaps ruling out, de facto, the available route for taking appeals through to the PCC system is a little short-sighted. We may not have the correct process or procedure here—we are not legal experts in this department—but we wonder whether there is an issue here that might need further consideration. I beg to move.
Lord Clement-Jones
My Lords, the amendment put forward by the noble Lord, Lord Stevenson, is of considerable interest. The very welcome aim and objective of Clause 10 is clearly to provide the most cost-effective and quick alternative for appealing against a registrar’s opinion and for distinguishing between matters of law and fact and so on. It is very interesting to suggest that it is the patents county court that would specifically deal with that, because that would meet the need for a point of law to be referred to the court in a cost-effective way. Rather like the noble Lord, Lord Stevenson, I do not know what the practicality of that is, but I certainly hope that the Minister will explore the suggestion because it seems to be consistent with the aims of the rest of Clause 10.
It is certainly interesting that Clause 10 has been constructed, as I understand it, very much in the way that current trade marks appeals against the registrar’s decisions are made, and that seems to commend it. What I do not know is whether the trade marks legislation refers to the High Court or whether there is some other route for a legal point to be determined on appeal in trade mark cases.
Lord Walker of Gestingthorpe
I, too, support this amendment. Without condescending to personalities, the prestige of the patents county court is now a good deal higher than it was at an earlier stage. It certainly undertakes work just as demanding as the Patents Court in the High Court.
Viscount Younger of Leckie
My Lords, we understand that this is a probing amendment. It would introduce the patents county court as an alternative appeals body to the High Court and the appointed person. Clause 10 reproduces the appeal routes for the IPO’s decisions in relation to trade marks, which have proved to be very effective and popular. This system provides two routes of appeal, one low cost and one high cost, for those who wish to appeal a decision of the registrar.
On the face of it, the patents county court would introduce another relatively low-cost appeal route. However, although fees are about £135, use of the PCC may involve legal representation, so it is not always the case that this would be a low-cost route of appeal compared with the High Court. In contrast, the cost to business of using the appointed person is currently zero. In addition, because the appointed person is a relatively informal route, businesses have traditionally, in the trade mark field, represented themselves. This means they also avoid the additional legal costs that might be incurred if they went through the PCC or the High Court. In cases sufficiently important to warrant appeal to a court, the Government believe that the PCC offers less flexibility to businesses than the High Court because it places limits on costs that may be recovered and limits hearings to two days. It is likely that this would be too restrictive in complex cases or cases requiring cross-examination. Introducing the PCC as a third route of appeal does not appear to add significant benefits; rather, it simply appears to add another layer of complexity in the decision-making process for business. Therefore, the Government are not convinced that adding this other route of appeal would serve a useful purpose. I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, I thank those who spoke in support of this amendment and, in particular, the noble and learned Lord, Lord Walker of Gestingthorpe, who made his first contribution in the Committee. I was glad that the Minister recognised that what we are trying to do is simply to explore the possibility of building on that which is there. The noble and learned Lord, Lord Walker, made the point that this court is gaining in stature, so there is evidence to suggest that what I am proposing would be effective in building a little bit more on to that.
The principal argument that the Minister used was that it would not necessarily be a low-cost route because it might have to involve legal representation. In reflecting on this debate, I hope he will think again about that because there will be some people who will want to have a low-cost route, and in that context it seems that a court that has set out from the start to say that it will not sit for more than two days and that it will limit costs is rather a good thing, not something to be scorned in trying to ensure that efficiency and effectiveness are used in the legal process, but that may be another matter. If there was a way in which it was clear that the route using the PCC was specifically designed for not-complex cases, that would meet our concerns about trying to build up and support it while not risking the very good arguments that have been put forward by the Minister. Perhaps he will reflect on that, and we could see whether there is an accommodating route forward when we come to this on Report. I beg leave to withdraw the amendment.
Lord Young of Norwood Green
My Lords, in this clause there is a proposal to add a new Section 28A to the Registered Designs Act 1949 to enable the registrar to provide opinions about designs. We and the respondents to the consultation generally welcome this proposal. However, we believe that proposed new subsections 28A(6) and 28A(7) seem to be contradictory. Subsection (6) of the proposed new section seems to say that an opinion is not a decision. If it is, presumably it has no legal force and is therefore not appealable. There is logic in that formulation. However, subsection (7) seems to provide that such opinions are appealable. Why is that? On what grounds are they appealable and to whom? Would a successful appeal change the nature of the opinion? If it had been tested in the courts, it would suggest that it would be different. Can the Minister therefore provide us with some clarification? Our amendment seeks to provide only an opportunity for the noble Viscount to read some suitable words into the record. I beg to move.
Lord Borrie
My Lords, I very much support my noble friend Lord Young. This idea is that having had an opinion service available for some time in relation to patterns, that is now to be brought over to the subject of designs as well. It seems a most useful device, enabling people to get an opinion for what I believe to be a relatively low cost to the applicant. Having that instead of taking legal proceedings or, at any rate, allowing a certain delay until legal proceedings are brought seems most helpful. However, it does not seem to be appropriate when, as the clause specifies, this is not a decision. My noble friend read out the bits of the clause which are relevant to this. It is an opinion; the clause specifies that. It is authoritative because it is coming from a source that ought to know the answer but, by not being a decision, surely it is inappropriate that there should be an appeal. It somehow takes away from the great value of an opinion, which is to give something straightforward in the opinion of the people who ought to know. Having it without an appeal would enable it to be done quite quickly.
Viscount Younger of Leckie
My Lords, Amendment 17 would remove the right of appeal to an appointed person in respect of opinions given under the design opinions service. The Government believe that the right of appeal is extremely important. In this case, businesses who receive a design opinion from the registrar should have the right to appeal that decision to an appointed person. This ensures that a person who is aggrieved by an opinion is able to get a second view on whether the opinion was arrived at correctly in the first place. In particular, it is an important next step before parties consider formal legal proceedings, which could be time-consuming and costly.
Offering a route of appeal for the design service reflects the principles established in the existing patent opinions service. The patent service has been well used, as has the ability for the opinion to be subject to a review procedure. Furthermore, a right of appeal was considered particularly important in the light of the European Convention on Human Rights: an adverse opinion could affect the value of the right and hence the proprietor’s ability to make use of it in business. It is therefore important to offer an appeal for design opinions to ensure that the necessary safeguards are in place.
Noble Lords commented that the routes of appeal against a decision by the Intellectual Property Office include an additional route of appeal to the High Court. This is because decisions by the IPO can be legally binding and can have an impact on a party’s rights. In contrast, the opinion provided by the opinion service is non-binding—indeed, it is an opinion, as the noble Lord, Lord Borrie, pointed out. That is why in subsection (6) of Clause 11, the proposed new section sets out that:
“An opinion given by the registrar under the regulations is not to be treated as a decision of the registrar for the purposes of section 27A.”
The opinions service is designed to be low cost and non-binding. The route of appeal available—an important principle to uphold, given the underlying economic value of the property right—is also low cost and appropriate to the non-binding nature of the opinion offered to parties. The noble Lord, Lord Borrie, raised an issue of cost. I can reassure the noble Lord that the cost of the service will be subject to compensation. In the mean time, I ask that the noble Lord, Lord Young, withdraws this amendment.
Lord Young of Norwood Green
My Lords, I thank my noble friend Lord Borrie for reminding us that this is a helpful, low-cost route and further testing whether the wording in the Bill is right. I thank the Minister for the clarification but would ask that he checks the wording to ensure that it does not introduce any ambiguities. In those circumstances, I beg leave to withdraw the amendment.
“( ) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute, has chosen to ignore the opinion given by the registrar.”
Lord Stevenson of Balmacara
My Lords, this is a continuation in some senses of the debate that we have just had and an attempt to probe a little further about the opinions service. The Minister was clear about what is intended here. My noble friend Lord Young made the point that the wording in the Bill might set people off on the wrong track with its notions of appeal. An appellate position is usually quasi-legal, if not legal, and therefore people will get into the wrong mode if the wording remains as it is. The suggestion might be to reflect a bit more about how this could be expressed in the Bill without setting people off down the wrong track. However, if the Government were minded to accept this amendment, it would certainly become a different beast, and I recognise that.
I am not trying to frighten the horses because it is not our game. The point here is that in the consultation responses a number of respondents expressed concern that some gaming may be involved in the use of the opinions service. That means that large companies might simply utilise the opinions service but ignore it, in the sense that the process of going in to get an opinion from the registrar could be forced on the smaller company or individual designer, who would go to some expense, but not much, to get an opinion from somebody who should know, in the words of my noble friend Lord Borrie, and would take that opinion, which perhaps supported the view that the design was covered by an unregistered design arrangement, or had a copyright, or whatever it is that the registrar would be able to opine on. The designer would go back to the larger company and say, “See, I have evidence now that you have done me a terrible wrong by stealing my design and using it, and I wish to be recompensed for it”. The company would just laugh in the face of that person and go straight to court, raising proceedings that might be very expensive and effectively using economic muscle to get rid of the small designer.
If our amendment were accepted, the judge or the court could take into account when awarding costs and damages whether the defendant or claimant had gone to the registrar and then ignored that opinion. I hope that that is not falling into the trap of giving this a legal status that it does not deserve or has not earned, but it adds teeth to the process, which would be useful to those who had to judge or settle claims in a way that would be effective and could raise the stature of the opinions service in the medium and long term. This is the thinking behind the amendment. The intention is to try to build up and support the opinion service by giving it a bit of steel behind its decisions, but without, I hope, falling into the trap of creating a quasi-legal approach. I beg to move.
Viscount Younger of Leckie
My Lords, the amendment places a duty on a court to consider a relevant design opinion issued by the Intellectual Property Office if it is awarding costs and damages to a party in a dispute.
The intention of the design opinions service is to provide businesses with access to an impartial view of the strength of their case in a potential design dispute, helping them to decide whether to pursue more formal and potentially costly proceedings. As with the patent opinions service, the Government have established that the service is non-binding. Although, in practice, the opinion may be used as part of a submission to the courts in support of an argument such as expert evidence, it will not hold a legal status. This will help ensure that the courts are not fettered in any subsequent legal actions.
The effect of this amendment would be to change the status of an opinion issued by the IPO and make it more likely to be binding on the parties involved. Having said that, I appreciate the spirit in which the noble Lord, Lord Stevenson, raised the opportunity to debate this matter. I agree that it could be seen to be a fine line. The amendment could place the decision, however, within the jurisdiction of civil law. This is at odds with the policy intention of the service, which is to provide an informal opinion on a design question. Therefore, I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his comments. I understand the dilemma that I have posed and why the Government have chosen to be where they are. I have some regrets about it because in some ways this is a good idea which could mean that what the Government are offering through the IPO is of greater value. I will add it to the list of things that I think need to be considered in a broader review of this aspect of intellectual property law and the wider concepts that we have been referring to that need to be picked up and given a broader context within which future policy can be made. With that, I beg leave to withdraw the amendment.
“( ) The registrar will ensure that, where possible, the use of online tools and digital platforms is encouraged.”
Lord Stevenson of Balmacara
My Lords, we believe the Government to be supportive of the general concept that all procedures and processes should, where possible, be digitally routed and that the activities of the Government themselves and their dependent functions should encourage people to migrate to the digital world as quickly as possible. I have already picked up enough stick by referring to a form in paper style, which my noble friend Lord Borrie immediately picked up was inappropriate, but I think that he also had in mind that this was redolent of an earlier age of quill pens and ink on forms completed in triplicate and dispatched by pigeon post around various offices, before being collated in compendious storage areas that could be permanently trawled by clerks bound to that paper. I am sorry for the flight of fancy, but it has been a long afternoon.
At the heart of the amendment is a proposal that we should, wherever possible, encourage those for whom the Government are responsible to think digitally. Therefore, the amendment would ask the registrar to centre the work of the IPO and in relation to the design opinions service and all parts of that around a digital platform. The development of all interactions or communications with clients should be digital. The online tools and digital platforms that will be created would be a huge advantage to those operating in this field because they will reduce costs, encourage quick responses and improve the quality of the advice and information exchanged.
The amendment has an impeccable pedigree and a wish to see the Government performing better, and I hope that it will commend itself to the Minister when he responds. I beg to move.
Lord Howarth of Newport
My Lords, while strongly endorsing the thrust of my noble friend’s amendment, I simply ask the Minister when he replies if he will explain to the Committee how we can have confidence that the department and the Intellectual Property Office will be able to maintain the appropriate security of online communications. Also, can he assure us that they will be able to preserve documentation in perpetuity?
Viscount Younger of Leckie
My Lords, Amendment 21 would place a duty on the registrar to encourage the use of online tools and digital platforms in the conduct of design registration. I welcome the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, raising this issue as it is an objective the Government already take seriously. IPO customers have indicated a genuine preference for the convenience offered by such services, and the IPO has further sought to incentivise such behaviour, for example by the use of lower fees for the electronic filing of trade mark applications. Currently more than 80% of trade mark applications occur online and therefore the Government see no reason why this figure cannot be achieved for online design applications. The IPO has recently migrated trade mark registrations to a fully electronic document management system and is starting to develop a similar system for design registration. The latter forms a commitment in the published corporate plan of the Intellectual Property Office, which I signed off earlier in the year.
Given the efforts that the office is making in this regard, I remain to be convinced that a specific duty needs to be set out in primary legislation. I understand the comments and the question raised by the noble Lord, Lord Howarth. The noble Lord, Lord Stevenson, raised this issue too, in terms of ensuring that we can have confidence in the security of the Government’s digital services. I can assure noble Lords in the Committee today that the IPO’s policies for keeping information secure and for maintaining them in line with the Government’s wider commitments in this area are in place.
I hope this will provide sufficient reassurance to the noble Lord and that he will withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for his comments, and I am happy to confirm to him that his words provided sufficient assurance. I beg leave to withdraw the amendment.
“( ) The registrar may give directions specifying that in Design Form DF2C the words “within one year” will be replaced with the words “within 30 months”.”
Lord Stevenson of Balmacara
My Lords, in rereading my notes for this amendment, I realised that I managed to commit another solecism by specifying a form. I hope that will not prompt my noble friend Lord Borrie to leap to his feet and decry me again.
The drafting leaves something to be desired, but the intention is clear. There is a reference in the consultation document to the way in which applications for registering a design have associated with them a possibility of a limitation or a short period of time before the form is published. This is for commercial and other reasons and works well; there is no reason to change it. However in the consultation the Government floated the idea that it should be 30 months, not 12 months, which is a substantial increase. It was interesting to read the responses to that consultation because the Government felt that they could do that and were suggesting that it would be done in the future. However, it is not in the Bill, and therefore the arrangements are going to be left for secondary legislation. I would be grateful in this concluding amendment in this afternoon’s business if the Minister would give us more and better information about what is intended, the rationale for allowing an extension beyond the 12-month period, if there is to be one, and the conditions under which individuals or companies can request such a deferral of publication so that we can better understand the way in which this operates. I beg to move.
Viscount Younger of Leckie
My Lords, this amendment, in the names of the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, would place a power in primary legislation for the registrar to amend the period of deferment of design applications from one year to up to 30 months.
When a design is registered, the applicant is issued with a certificate and the design is published in the Official Journal. The deferment period allows applicants for registered designs to delay the date of registration where they might want to keep the design confidential. There could be good commercial reasons for this; for example, a business might not be quite ready to market a product and would want the registration, and therefore publication, to coincide with the entry of its product on to the marketplace.
The powers under Section 36 of the Registered Designs Act 1949 enable rules to be made prescribing time limits, including for the purposes of Section 3(5) of the 1949 Act to which this amendment is addressed. In addition, Clause 12 removes the requirement to use secondary legislation to make minor changes in the way the IPO functions. This will enable the IPO to specify by means of directions any necessary changes to the content and layout of forms relating to registered designs. A note explaining what these directions are expected to contain has been made available and placed in the Libraries of both Houses. The note sets out that one anticipated change will be to extend the period of deferment for publication of design applications for up to 30 months. The detail contained in this amendment is more appropriately dealt with in rules or directions. I hope this will provide sufficient reassurance to the noble Lords such that this amendment can be withdrawn.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for his comments. In giving an answer, I do not think he picked up the point I was making, which was that it is not clear why the jump from 12 to 30 months is justifiable. I understand the process, and I am grateful to him for confirming that there will be secondary legislation. Indeed, I had noted reference to that in the document that was circulated prior to the Minister meeting Peers. However, 12 months to 30 months is such an enormous gap. Will the Minister write me a short note about it? Perhaps he can respond now.
Viscount Younger of Leckie
I apologise to the noble Lord because the question of why it is 30 months is important. The answer is that it is to conform to EU law. The general principle is aligning UK law with EU law in this respect.
Lord Stevenson of Balmacara
Well, there we are. I thank the Minister. That is certainly an answer, but it is not quite what I was expecting. I still think it might be helpful if a little more context could be given, but I will not press the Minister further on this point. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Andrews)
My Lords, that concludes the business of the Committee for today. The Committee is adjourned until 2 pm on Thursday 13 June.
House of Lords
Small Businesses: Late Payments
Lord Harrison
To ask Her Majesty’s Government what steps they will take to amend the legislation on late payments to improve the cash flow of small businesses.
Lord Popat
My Lords, the Government take the issue of late payment very seriously. We recently transposed a European directive to combat late payment into UK law. The amended legislation came into effect on 16 March this year and builds on existing UK law. It further strengthens the legal obligation on payment terms, including a statutory obligation on public authorities to pay commercial creditors within 30 days.
Lord Harrison
My Lords, the prompt payment code has been a palpable and egregious failure. Only one in five of Britain’s limited companies and only two out of 42 police authorities have signed up to it, leaving most small businesses £45,000 short in their ability to invest. While it is welcome news that the Government are implementing the March 2013 late payment legislation, failure has occurred so far. Therefore, could the Government put teeth into the legislation prepared by the Labour Government? Secondly, will they consider encouraging credit capital markets to be available to small businesses in the same way as they are in America, to allow small businesses the ability to invest?
Lord Popat
My Lords, 75% of the FTSE 100 companies have signed up to the prompt payment code; something like 1,500 companies are now signing up to it. With regard to the public organisations, including police authorities, we are taking every action possible. My colleague, the Minister Michael Fallon, has written to them, giving them 90 days to ensure that they sign up to the prompt payment code. With regard to funding, the Government have a number of schemes to help SMEs finance their existing cash flow, including funding for lending.
Baroness Browning
My Lords, what assessment have the Government made of the potential for early payment schemes for the cash flow of small businesses?
Lord Popat
My Lords, the Government fully support early payment schemes, which offer suppliers the option of early payment in return for a discount or a fee, as long as that is offered in conjunction with fair payment terms rather than as a substitute. The Government’s view is that all businesses should agree fair payment terms at the outset of the contract and that they should pay their suppliers on time, according to the agreed times.
Lord Borrie
My Lords, why do the Government not empower a public authority, such as the Financial Conduct Authority, to take up cudgels on behalf of small enterprises, to ensure that prompt payment is made of cash that is due to them?
Lord Popat
My Lords, we have a voluntary organisation, the Institute of Credit Management, which oversees the prompt payment code on behalf of the Government. We do not need a statutory organisation to bring in prompt payment.
Lord Cotter
When the Government place contracts with large companies in future, will they ensure that it is a requirement that those companies sign up to the prompt payment code, and that they publicise their record on the payment of bills in their annual reports?
Lord Popat
My Lords, the Government are doing everything possible to encourage a culture of prompt payment. As I said earlier, 75% of FTSE 100 companies have already signed up to prompt payment.
Baroness Sharples
Can my noble friend say whether the ministries are paying their debts on time?
Lord Popat
The noble Baroness raises an important issue. The department is doing everything it can to speed up prompt payment, both for SMEs and for large companies.
Lord Mitchell
My Lords, the Government have been prolific in announcing new schemes designed to assist small businesses to grow. They all have one thing in common: not one of them is working. The money simply is not getting through. If large organisations could be shamed into paying within 30 days, small companies would benefit immediately. Here is an idea: why not make it compulsory for all organisations, public and private, to include payment performance in their annual accounts?
Lord Popat
My Lords, government departments are obliged to pay 80% of their invoices within five days. We are promoting a culture of prompt payment. We would not like to bring this in as part of legislation. In many ways, we inherited this particularly important and good legislation from the previous Government. We will now further enhance it by taking the European directive to make sure that UK suppliers are paid by member states of Europe.
Baroness O'Cathain
My Lords, I ask my noble friend whether it is a great thing that 75% of the FTSE 100 who actually pay have subscribed to this code. First, a code is a code, not a law. Circumstances are such now, with austerity in such a state, that we ought to look at this seriously. If 75% of the FTSE 100 pay on time, that still leaves one in four of our major companies that do not. I also support the point that my noble friend raised: is the Minister able to give us details of which government departments actually pay on time, not the ones that do not?
Lord Popat
My Lords, at least 80% of invoices are paid within five days by government departments. In March 2013, the biggest paid 97.1% of its invoices within five days. Although 75% of FTSE 100 companies have signed this code, we are doing everything possible to encourage and support the other 25% who have not signed. However, there is a good chance that these companies do not supply that many goods and services in the UK, even though they are FTSE 100 companies listed in the UK.
Lord Campbell-Savours
My Lords, why do the Government not promote invoice discounting and factoring more vigorously?
Lord Popat
My Lords, the discount depends on the supplier and the buyer. Quite often there is an agreement to make prompt payment, and if there is early payment a discount is offered by the supplier to the buyer. Factoring is very common; most banks like to factor invoices, rather than provide additional funding in the form of an overdraft. That is because factoring brings their capital back more quickly than an overdraft facility would.
Atmospheric Carbon
Lord Wigley
To ask Her Majesty’s Government what steps they will take to address the increase in the level of atmospheric carbon recently recorded by the monitoring station at Mauna Loa in Hawaii.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma)
My Lords, I am aware that this spring, for the first time, atmospheric carbon dioxide levels briefly reached 400 parts per million in some parts of the world, compared with pre-industrial levels of approximately 280 parts per million. Domestically, the UK has committed to achieve at least an 80% cut in carbon emissions by 2050. Internationally, through the UN Framework Convention on Climate Change, the Government are working towards adopting an ambitious and legally binding global deal in 2015, increasing mitigation ambition in the period up to 2020, and continuing to build a climate regime that will ensure that countries’ commitments are measurable, transparent and comparable.
Lord Wigley
My Lords, is the Minister aware that the last time atmospheric carbon hit the 400 parts per million level was 3 million years ago when the Arctic was free of ice and sea levels were 40 metres higher than they are today? Given the comments of the Environment Minister, Owen Paterson, on “Any Questions?” last Friday, which suggested that he is in denial about the contribution of carbon to climate change, can she give an assurance that the Government will stick by their policy and confirm that they recognise that the greatest contributor to climate change is in fact carbon? That is the opinion of the overwhelming majority of the scientific community. Will she put it to the Government that this issue should be high on the agenda at the G8 meeting next week in Northern Ireland?
Baroness Verma
My Lords, I agree with the noble Lord that a large majority of scientists around the world agree that there is evidence of global warming through carbon emissions. We as a Government remain committed to reducing carbon emissions and I hope that my first Answer gave the noble Lord some reassurance on that.
Lord Deben
Does my noble friend accept that we recognise the very fine record of the Government in sticking to their policies up to now? However, the important thing is this: how do we deliver from now onwards? It is very important that the explanations around the Energy Bill are clear, concise and very decided. Furthermore, we should have a carbon intensity target for 2030 if we are going to get the investment that Britain needs to ensure that we have a low-carbon electricity supply.
Baroness Verma
My noble friend is absolutely right to say that we need to ensure that there is certainty for investors. The Energy Bill, which is to come to your Lordships’ House next week, will set out exactly what the Government are doing through the electricity market reform project. We are working hard to ensure that there is certainty in the renewables sector and we are on target to meet our carbon emissions reduction goals. I think that noble Lords will find, during the passage of the Bill, that this Government plan to be one of the greenest Governments because of the measures they are currently taking.
Lord Soley
My Lords, I understand the interest in international agreements, but is there not an important factor here in the form of the science and technology sector, which is talking increasingly about extracting carbon from the atmosphere? Will the Government continue to give major support to the scientists and technologists who are working on the extraction of carbon, which is now being discussed increasingly as an option?
Baroness Verma
My Lords, the noble Lord has made an important point; it is one that has a great deal of technical and scientific evidence behind it. If the noble Lord will allow me, I will give a more detailed answer in writing and I will place a copy of that response in the Library.
Lord May of Oxford
I remind the noble Baroness that we are on target, but only by virtue of the recession. As I have rather unkindly remarked on a previous occasion, I trust that this is not our plan for remaining on target to 2050, although sometimes I wonder as I look at the current happenings.
Baroness Verma
My Lords, I reassure the noble Lord that it is not just because of the recession. We are, through the Energy Bill, putting in place a number of measures to ensure that we will be working towards reducing carbon emissions.
Lord Teverson
My Lords, to reduce carbon emissions we need a strong carbon price. Can my noble friend the Minister tell us what the Government are doing to boost the price of carbon in Europe, despite the fact that the European Parliament has recently voted against the backloading of current emission targets?
Baroness Verma
I agree with my noble friend. We continue to support the Commission’s proposal to backload and we hope for a more positive outcome in the forthcoming votes in the European Parliament at the next voting session. The Government are pushing for the adoption of a unilateral EU target for 2030 of a 40% reduction on 1990 levels, and, in the context of a more ambitious climate agreement for the period beyond 2020, the EU’s target should increase up to a 50% reduction on 1990 levels.
Baroness Worthington
My Lords, I return to the original Question from my noble friend. The Government are hosting the G8 meeting in Northern Ireland next week. Despite receiving requests from both the German and French Prime Ministers, our Prime Minister has been reticent about putting climate change on the agenda. Has he had cause to rethink this decision and will climate change be discussed next week in Northern Ireland?
Baroness Verma
My Lords, I can reassure the noble Baroness that it remains very much a commitment for all G8 leaders. This year, under our G8 presidency, the Foreign Ministers will consider the wider security risk presented by changing climate. It has not gone off the agenda. It will be discussed, but in a different forum.
Lord Howell of Guildford
Is my noble friend aware that Mauna Loa, mentioned in the Question, is, measured from the seabed, one of the highest mountains on earth, higher than Mount Everest? The top of it is often in the clouds and I am afraid that some of the discussion about this issue is in the same position. I am sure she is aware that the most rapid reduction in CO2 is being achieved currently in the United States, which has gone very rapidly from coal to gas. If we really want to get our CO2 emissions rapidly down once the recession is over, is there not a case for concentrating in the short and medium term on developing the gas economy as rapidly as possible, thus reducing CO2 emissions, cheapening our power and encouraging economic growth and recovery?
Baroness Verma
My Lords, my noble friend is right that gas will have an important role to play and will continue to make a contribution to our energy mix.
Schools: PSHE
(11 years, 6 months ago)
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Baroness Massey of Darwen
To ask Her Majesty’s Government what is their assessment of the report by Ofsted Not Yet Good Enough: Personal, Social, Health and Economic Education in Schools, published on 1 May.
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, the Government are grateful for Ofsted’s report, which provides an important and valuable analysis of the strengths and weaknesses of PSHE provision in this country. We encourage all schools to focus on the areas for improvement outlined in the report and, in doing so, to access best practice identified by Ofsted.
Baroness Massey of Darwen
I thank the Minister for that response. I know that he agrees on the importance of personal, social, health and economic education in schools. Is he aware that not only is Ofsted concerned but so are parents, those who work with young people and young people themselves? Can he use his influence to suggest to the DfE that a simple addition to part 2 of the national curriculum framework could make explicit the link between existing statutory provision and personal, social, health and economic education?
Lord Nash
I am aware that the PSHE strategic partners group has written to my honourable friend the Minister for Education and Childcare calling for a more explicit link to be made in the national curriculum framework document between schools’ statutory requirements and the provision of PSHE education. I am grateful for the input of this group, which represents a wide range of PSHE stakeholders. I assure noble Lords, and the noble Baroness, that we are currently giving this full and proper consideration as part of the national curriculum review.
Lord Storey
My Lords, considering that in a fifth of the schools inspected it was found that none of the staff had any training in PSHE and that in a fifth of the schools the teaching was not good, what steps will be taken to improve continuing professional development in PSHE in both education and subject leadership?
Lord Nash
To support schools, we have asked Ofsted to publish specific examples of effective practice in PSHE to provide evidence for teachers when developing and delivering their PSHE programmes. We are also providing grant funding to the PSHE Association to undertake work advising schools on their teaching, including improving staff training. The PSHE Association will expand its chartered teacher programme, which recognises effective practice and encourages high-quality PSHE training.
Baroness Howe of Idlicote
My Lords, the report says that improvement in the delivery of the sex and relationship side of PSHE is needed in as many of a third of schools; and, worse, that this means that particularly sensitive issues, such as mental health, sexuality, domestic violence and pornography, are either receiving too little attention or are frankly just being omitted completely because of teacher embarrassment. What steps are the Government proposing to ensure that teachers involved will in future have the necessary skills to teach these important subjects?
Lord Nash
The noble Baroness is quite right that we need to up our game in this regard, particularly in relation to internet pornography. As noble Lords will know, quite a lot is going on in relation to the internet at the moment. SRE in particular is a vital part of training, and we hope that the Ofsted examples will improve that. The draft science curriculum includes clear requirements for pupils to be taught about their bodies, physical development and reproduction.
Baroness Gardner of Parkes
Can the Minister tell me why there is no interest at all now in education on dental prevention in schools? Although children still have tests for eyesight, hearing and so on, the dental examination has been discontinued. Can he ensure that teachers will interest children in prevention? Hearing that Manchester has not only one of worst mortality rates but the worst dental health makes you think that it is rather important.
Lord Nash
My noble friend raises a very good point. All schools should focus on their pupils’ diet and health, including home health, because we know that so many pupils suffer from poor parenting. I will write to her more specifically about what we are doing in this regard.
Baroness Hughes of Stretford
My Lords, the worldwide campaign against violence towards women, along with recent criminal cases, has highlighted the danger that internet pornography presents to children and young people. The Children’s Commissioner’s inquiry shows that many young people are exposed to internet pornography through their schools and their friends. What guidance have the Government issued to schools to help protect children from exposure to internet pornography? Is this issue not a really good example of why we now urgently need statutory PSHE?
Lord Nash
I entirely agree with the noble Baroness’s point about the danger of internet pornography, which is a much bigger issue than just in schools. We are working with the industry, through the UK Council for Child Internet Safety, to make it easier than ever for harmful and inappropriate internet content to be filtered from home broadband and all devices. The top five ISPs have committed to having parental controls in place by the end of 2013. On 18 June, the Secretary of State for Culture, Media and Sport will meet internet businesses to see what more they can do to tackle illegal online pornography. Further work is also going on in this regard.
Lord Northbourne
My Lords, following on from the first intervention, is the noble Lord aware that there are no fewer than 10 references in this report to the inadequacy of specialist teacher training to prepare teachers to teach these subjects, particularly personal and social education, in schools? Surely the Government ought to do something to encourage teacher training colleges to provide better training and more of it.
Lord Nash
We are giving greater control to schools to decide how best to recruit teachers and expanding the teaching schools programme substantially. Good schools, in partnership with strong training institutions, understand the needs of their pupils and how staff should be prepared for this. As I have mentioned, we have funded the PSHE Association further in this regard.
Homeless People: Night Shelters
(11 years, 6 months ago)
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Lord Alton of Liverpool
To ask Her Majesty’s Government what provision they are making for homeless people left without access to night shelter provision following the Anglesey judgment on housing benefit and the funding of night shelters.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, local authorities are best placed to make local provision for homeless people and have been allocated £470 million from 2011-12 until 2014-15 to prevent homelessness and tackle rough sleeping.
Lord Alton of Liverpool
My Lords, if there were no material changes in the Government’s regulations concerning night shelters, why are homeless people who were in shelters now on the streets? In the light of the Anglesey judgment is there not an urgent need for the Minister to issue new guidance to close a revolving door which has sent vulnerable people, many of whose lives were, in any event, in freefall, back on to the streets, sleeping rough on park benches or in shop doorways or seeking hospital beds, and which in Salford precipitated the closure of Narrowgate, the only night shelter serving Manchester and Salford, which has, in the past, helped more than 2,000 people? To protect the homeless, do we not need to rapidly hammer out a humane and just solution, with new guidelines issued to local authorities and to charities working with the homeless?
Lord Freud
My Lords, clearly homelessness is a priority of this Government and we are putting a lot of resource into prevention. The most important area in which we are doing that is the No Second Night Out policy, which is proving very successful and is being run out across the country this year. This is an isolated example of how particular shelters are funded.
Lord Roberts of Llandudno
My Lords, how much consultation was there before this judgment was put into effect? Following the point of the noble Lord, Lord Alton, who has done tremendous work in this area, is it not time that we issued clear, simple guidelines? Will the Minister write to every local authority explaining that not only have benefits been paid in the past but, in spite of the judgment, they can be paid now and that no one need lose their place in a night shelter?
Lord Freud
My Lords, the actual finding was that a particular night shelter in Anglesey could not be treated as a dwelling because it was, basically, a converted hall. There was no reserving and the people there came on a first come, first-served basis every night. It was a particular finding which might apply to a few other places. However, that is about how local areas find the best possible funding for their support for homeless people.
Baroness Armstrong of Hill Top
My Lords, I declare my interests stated in the register. I know that the Minister understands that many homeless organisations are trying to move as many people as possible from hostel accommodation in to independent living. However, does he realise that that is now being put at threat because of the changes to the benefits system and, of course, the bedroom tax? In Newcastle, the local housing company has had to warn the Cyrenians, which is the biggest supplier, if you like, of work with the homeless, that it is coming to the stage where it will not be able to allocate any properties to the homeless because it will have to use them for people being transferred within their own estate.
Lord Freud
My Lords, that is clearly a very wide question and I find it hard to answer the specific point. On the point about hostels for the homeless, our best estimate is that there are about 9,000 bedrooms for people who are rough sleepers. A proportion of those may be affected by this particular provision. Authorities need to look at the other sources of funding, including the Supporting People programme, which received £6.5 billion in this spending review.
Lord Brooke of Sutton Mandeville
My Lords, can my noble friend remind your Lordships’ House how many spare bedrooms there are in the social housing sector and how many families live in overcrowded accommodation?
Lord Freud
My Lords, there are approximately a quarter of a million people living in overcrowded accommodation and 1 million spare bedrooms in homes lived in by people who receive benefits in the social rented sector.
Lord Avebury
My Lords, the noble Lord said that this was an isolated incident, but is he aware that local authorities are already cutting off housing benefit and that shelters are closing down? When will Homeless Link and Crisis have a reply to the representations that they made to DWP asking for an urgent clarification of this ruling?
Lord Freud
My Lords, this is a very particular ruling on what is a dwelling for which housing benefit is payable. Clearly, there are other ways to provide support for night shelters where they are not dwellings. As I said, that is in the Supporting People programme and in the homelessness prevention budget, which are the two large budgets. There may be a small number of the 9,000 or so bedroom spaces where one has to look carefully at what is the appropriate funding, but a large amount of effort is going into supporting rough sleepers and to make that provision. If the effect of this is to upgrade the provision of beds for those who are sleeping rough, that might be a rather good outcome.
Lord McKenzie of Luton
My Lords, the Minister said that homelessness was a priority for the Government. It is interesting to note that, after years of declining trends, 2010 marked the turning point when all forms of homelessness began to rise. Does the Minister accept that for many, a period of stay in a shelter is the first step to being able to obtain and keep a home? It is an environment where they can begin the transition from a chaotic lifestyle to something more stable. In those circumstances, why does not the Minister take up the suggestions that noble Lords have made to look specifically at statutory guidance or a tweak in the regulations so that the types of provision caught by this ruling are put back in the position where people assumed that they were before the judgment was made?
Lord Freud
My Lords, I emphasise that there is absolutely no change here in what is the kind of home for which housing benefit is appropriate. Where that is, in the case of Anglesey, a hall where the showers for those people are half a mile away, it may be that other forms of support, such as the Supporting People programme or homelessness prevention are more appropriate. The No Second Night Out programme, which is now being introduced throughout the country, is beginning to make some impressive moves to make sure that people in the state of rough sleeping are caught early and got back on to the path, as the noble Lord said, out of a chaotic lifestyle into something where they can get themselves organised.
Planning Act 2008 (Nationally Significant Infrastructure Projects) (Electric Lines) Order 2013
Baroness Verma
That the draft order laid before the House on 10 April be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 June.
Representation of the People (Northern Ireland) (Amendment) Regulations 2013
(11 years, 6 months ago)
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Baroness Randerson
That the draft regulations and draft order laid before the House on 8 May be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 June.
Education: Reform of GCSEs
(11 years, 6 months ago)
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The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, with your permission, I should like to repeat a Statement on the future of examinations. The Statement is as follows.
“There is now a widespread consensus, underpinned by today’s authoritative report from the Education Select Committee, that we need to reform our examination system to restore public confidence. That is why today we are publishing draft details of new GCSE content in core academic subjects and the independent regulator Ofqual is publishing its own consultation on the regulation of reformed GCSEs.
We are publishing the draft content in English, maths, science, history, geography and modern and ancient languages alongside this Statement. We will consult on that content over the next 10 weeks. We expect that these subjects, with the exception of languages, should be ready for first teaching in September 2015, with the first exams being taken in the summer of 2017. Languages and other subjects should follow soon after with first teaching from September 2016 and first exams being taken from the summer of 2018.
The new subject content published today has been drawn up in collaboration with distinguished subject experts, many of whom have expertise and experience in teaching, and we would like to thank them all. In line with our changes to the national curriculum, the new specifications are more challenging, more ambitious and more rigorous. That means more extended writing in subjects such as English and history, more testing of advanced problem-solving skills in mathematics and science, and more testing of mathematics within science GCSEs to improve progression to A-levels. It also means more challenging mechanics problems in physics, a stronger focus on evolution and genetics in biology and a greater focus on foreign language composition so that pupils require deeper language skills.
The higher level of demand should equip our children to go on to higher education or a good apprenticeship. We can raise the bar confidently knowing that we have the best generation of teachers ever in our schools to help students achieve more than ever before. Our education reforms, the growth in the number of academies and free schools, the improvements in teacher recruitment and training as well as sharper accountability from improved league tables and a strengthened Ofsted are raising standards in state schools. This means that new GCSEs will remain universal qualifications—accessible, with good teaching, to the same proportion of pupils as now.
The specifications that we are publishing today also give awarding organisations a clearer indication of our expectations in each subject. Under the previous system specifications were too vague. This caused suspicion and speculation that some exam boards were ‘harder’ than others, undermining the credibility of the exam system as a whole. Including more detail in our requirements for subject content should ensure greater consistency and fairness across subjects and between exam boards. We hope that by reducing variability in the system we can ensure that all young people leave school with qualifications respected by employers, universities and further education.
While making GCSE content more rigorous we must also correct the structural problems with GCSEs that the coalition Government inherited. As today’s report from the Select Committee confirms, the problems with English GCSEs generated last summer proved beyond any doubt that the current system requires reform. Both the Select Committee report and Ofqual recognise that controlled assessment, which counted for 60% of the English GCSE qualification, undermined the reliability of the assessment as a whole. That is why I asked Ofqual to review the regulatory framework for GCSEs, to judge how we might limit coursework and controlled assessment and to reflect on how we could lift the cap on aspiration by reducing the two-tier structure of some GCSEs. I have also asked Ofqual to explore how we might reform our grading structure, better to reflect the full range of student ability and reward the very best performance.
Ofqual’s consultation sets out how reformed GCSEs can be more rigorous and stretching and encourage students to develop and demonstrate deep understanding. It is proposed that coursework and controlled assessment will largely be replaced by linear, externally marked end-of-course exams. It is proposed that the current two-tier system will end except where it is absolutely essential, in maths and science. In those subjects, Ofqual is consulting on how to improve the current arrangements to deal with the concerns that we have expressed about capping aspiration. Ofqual is also consulting on a new grading system which gives fairer recognition to the whole ability range.
Young people in this country deserve an education system that can compete with the best in the world, a system that sets and achieves higher expectations. Today’s reforms are essential to achieve this goal. By making GCSEs more demanding, more fulfilling and more stretching, we can give our young people the broad, deep and balanced education that will equip them to win in the global race. I commend this Statement to the House”.
Baroness Jones of Whitchurch
My Lords, I thank the Minister for repeating the Statement today. He will know that the department and the Secretary of State have a rather chequered history on education reform—less about linear reform and more about stops, starts and U-turns. It has been difficult for politicians to keep up with his thinking, let alone the head teachers who have to plan for the changes, the teachers who have to deliver those changes and the parents who would like to understand what is to be expected of their child. As a result, a great deal of cynicism and anger has developed about the mixed messages coming out of the department, the pace of change now being demanded and the lack of engagement with the profession prior to the curriculum changes being published.
For example, the Minister talked about the involvement of distinguished subject experts in drawing up the subject content, but he will know that there is a great deal of discontent among those very advisers that their advice was ignored and that they did not recognise the final subject drafts being published. There was even some suggestion that the Secretary of State had removed some of the advisers at a late stage and taken on the task himself. What reassurance can the Minister provide that the draft subject content is genuinely based on the best external advice available and receives their broad support?
Secondly, there is a real concern that the views of parents were not properly sought before these changes were announced. Most parents are passionate about their children’s education and well positioned to know what excites and inspires their child at school. They want to know that standards will apply across the sector—not one rule for academies and another for maintained schools; they worry that unqualified teachers are being allowed back into classrooms by this Government; and they want to be reassured that any new curriculum will provide their child with the qualifications and skills to get decent employment in the future. What steps have been taken to give parents a real and powerful voice in the final shaping of these proposals before they are agreed?
Thirdly, the Minister will know that in the past business leaders and the CBI have expressed concerns that the emphasis on learning and repeating facts that is now being proposed, rather than understanding the importance of collaborative working and creative thinking, are taking the curriculum proposals in the wrong direction and not producing young people with the soft skills necessary in today’s business world. To what extent have the future employers of these young people been involved in drafting the curriculum proposals, and do these now meet with their approval?
Fourthly, the Government are already committed to raising the participation and school-leaving age to 18. This is a policy that we also endorse. However, these proposals cover only the teaching provision to 16. Does the Minister agree that it would have been better to review the curriculum and assessment provisions in a streamlined way through to school-leaving age, rather than approaching it in this piecemeal way? What thought is being given to providing a meaningful education to young people who do not want to study the traditional academic A-level route and who would prefer a quality vocational offer, particularly those in the 16-to-18 range? How does this fit in with these proposals?
We all share the determination to have high standards and rigour in our teaching and assessment of young people. We are proud of our record of driving up standards in the past—the Secretary of State has previously acknowledged our record in this regard—and we support the reform of controlled assessment of coursework in examinations. Clearly, everyone has to have confidence that assessments are carried out objectively and rigorously, but we very much oppose the move back to assessment purely at the end-of-course exams. The Minister spoke of a “cram and forget” culture in exams, but that is the inevitable feature of measurement by exams.
A three-hour exam can never give a child a chance to show all they have learnt over a two-year course, nor can it show the depth of understanding that they can demonstrate in a well-structured piece of coursework. A minority of children will have an innate talent for learning and regurgitating facts. Good for them; we wish them well; but that is not how most children learn or show their abilities, and these are not necessarily the skills that employers want either. The answer has to be a mix of assessment methods to ensure a fair outcome. Can the Minister therefore explain the evidence by which this major change in assessment has come about and what consultation will continue to take place on whether it is fair and viable?
Once again the department has been guilty of rushing out proposals which have major consequences for the next generation of young people. There should be a national debate on the implications and a genuine commitment from the Government to listen and change. Sadly, this department does not have a great record on meaningful consultation, but I hope on this occasion the Minister can reassure this House that there will be a full opportunity to influence the eventual outcome of these changes within both this House and the country before a final decision is taken.
Lord Nash
I am grateful for the noble Baroness’s comments. I was rather surprised to be asked to make this Statement because it seemed to be one more opportunity to highlight the grade-inflation confidence trick that the previous Government pulled on the public of this country. It is true that grade inflation has been going on for a long time. According to a detailed study by King’s College London and Durham University, over the past 30 years-plus in maths the attainment levels have hardly moved, yet the number achieving grade C in maths GCSE has gone up from 22% to 55%. Between 2006 and 2009 achievement at grade C in English and maths increased by eight percentage points, defying all international evidence about the actual levels of achievement. We all know that the current system suffers from dumbing down and grade inflation and that the modular system has much more potential for manipulation. The blowing up of English last summer was the last straw in providing evidence in relation to this. It is not a question of whether we should do it; we must do it, and we must do it now if we are to render our education system competitive in the international world.
We have listened and we will continue to listen. This is a genuine consultation. We have consulted numerous experts, from Dr Anthony Ashmore, Dr Helen Drury, Lynne McClure, Professor Black, Eleanor Rawling to Charlie Stripp and many others. We have consulted parents and businesses. Businesses have been consistent in their claim that the curriculum is not fit for purpose—42% of employers have to provide remedial training for school leavers; eight out of 10 small businesses do not believe that school leavers are ready for work. The Institute of Directors has confirmed that the value of a GCSE has declined, and the British Chamber of Commerce says that school leavers’ literacy and numeracy are inadequate. In science, the Royal Society of Chemistry has called the decline in science a “catastrophic slippage”. Again, there is no doubt that we have taken this on board. Businesses want pupils to have better literacy and numeracy skills, which these more rigorous exams will provide.
Vocational training is right at the top of the Government’s priorities. The first thing we did when we came to power was to commission Professor Alison Wolf to do an analysis of the over 4,000 vocational subjects, many of which were so-called “equivalents”; this equivalence was another attempt to make the education system look better than it was. We have rigorously gone through those qualifications and reduced them to fewer than 200: those which are seriously valued by employers. We are introducing the TechBac, and have consistently compared our exam system with international systems and found it wanting.
We must drive stimulus in the system for better education. By doing that, in two years alone we have increased the take-up of the English baccalaureate from 22% to 48%. It is absolutely clear that our pupils are capable of far more than we have hitherto asked of them. Nothing I have seen has made me think anything other than that. It is high time that we reformed these exams. We have been accused of doing too much too fast. We have fallen so far down the international league tables that, in order for our education system and our country to be competitive, we must move to make substantial changes now.
Lord Sutherland of Houndwood
My Lords, I welcome the Statement from the Minister, and the fact that it has come now. Generations of students should benefit as soon as possible from the potential progress that we have marked here.
On a specific point, I welcome the attention to assessment, reflecting the whole range of ability and achievement in our school population. We have been failing to do this, which has been a disincentive to some of our most able pupils. The Minister will be aware of the success of Finland in the PISA international comparisons. Is he equally aware that one of the elements contributing to that success has been an attempt to ensure that the curriculum is more rigorous and detailed? I assume that these are the principles underlying what we have heard today.
Finally, can the Minister reassure us that the policy issues raised here will in fact be assessed, and that evidence as to whether or not they work will be presented to the House in due course?
Lord Nash
I am grateful to the noble Lord for his comments; I know that he is extremely well informed on these matters. I was aware of the success of Finland. We believe that Ofqual, particularly after its performance on the English exams, is now a rigorous organisation. The various assessment techniques it is consulting on—one in particular—will be rigorous.
Lord Storey
My noble friend is absolutely right to say that we need to have a rigorous examination system in which employers, universities, parents and even pupils have confidence and which is as challenging as that in any other country. I am delighted that we are not going back to a two-tier system; that was important to my colleagues.
I have two questions. An exam is hugely important to the pupil sitting it. It can make or break their life chances and expectations. At the moment you go into an exam, you might have great emotional problems. Young girls or young women can be starting their period, which can be devastating for them when they sit their exam. I hope that Ofqual will look at giving support to those pupils in terms of resits.
My second question follows on from the comments made by noble Lords opposite. How do we consult with parents? We bandy around the phrase, “We must consult with parents”, but how is that consultation carried out? Have we ever thought of consulting pupils themselves? They have great experience of exams.
Lord Nash
I am very interested in my noble friend’s comments. I know that he has vast experience as a teacher. On his last point, I recently read a very interesting report from America, which said that lesson observation was not the best way of working out whether teachers were teaching well; the best way to do that was through exam results and pupil feedback. My noble friend makes a very good point. In relation to pupils who maybe experience particular difficulties with resits, I will take this away for consideration.
Baroness Wall of New Barnet
My Lords, I welcome the Minister’s Statement. I am involved in skills and in working with employers, and as late as yesterday I hosted an event here for employers who deal with STEM subjects. The information the Minister shared with us is very much in tune with what is being experienced out there.
My first point follows on from the comments about how we engage parents. A key thing that came out from the meeting yesterday was how we persuade parents that the vocational route is as good, as well qualified and as valuable as the academic route, which my Government and previous Governments have endeavoured to take more people through. That is hugely important. When young people look at apprenticeships, very often their parents will suggest that they are the least best option, let alone the message that comes from schools, where career advice is now non-existent, and Connexions has gone—not that I was a great admirer of it; it had lots of faults. However, if we are to get UK plc working in the way it should do, and being as productive and profitable as it needs to be, employers need to know that they have support from parents as well as government and themselves, ensuring that the skills and vocational techniques that apprentices require are just as important.
Secondly, although the Minister has been very sceptical about equating GCSEs with vocational NVQ qualifications, that has made a difference, because it has allowed parents to measure in some way, however accurate the measurement, the value of what their children are learning. I hope that they will also be brought to a productive employment future.
Lord Nash
The noble Baroness makes some very good points. It is essential that we now make sure that our vocational qualifications are seen by all— employers, parents and students—as being as rigorous as academic qualifications and equally valuable. The Alison Wolf review, which suggests that we focus down on a core—although still substantial—number of vocational qualifications, is helpful here. However, we started from a very low base. You could get a diploma in a subject—I will not mention the name—which required no examinations at all because it was assessed entirely by continuous assessment. That counted as four GCSE equivalents. We clearly had got to a point where the system of equivalents was out of control. However, we need to see more rigorous vocational qualifications—and the UTC programme is very focused on this. We are seeing pupils, aged 14 and 16, going to UTCs which offer extremely rigorous vocational qualifications, and we need to spread this practice into schools as well.
Baroness Coussins
My Lords, I declare an interest as chair of the All-Party Parliamentary Group on Modern Languages. I welcome the Government’s intention to introduce more rigour in foreign languages at GCSE. However, there seems little point in improving the system if very large numbers of pupils are effectively disfranchised from access to it. What can the Minister tell the House about the Government’s intention in relation to the pupils in the 20% of state schools that have condensed key stage 3 into only two years, meaning that there are tens of thousands of pupils who do no languages at all after the age of 13, and who therefore have no chance of taking a language at GCSE, improved or otherwise?
Lord Nash
Yes, there are quite a few schools that take GCSEs over three years. It is a technique that troubles me a bit personally because we all know that if key stage 3 was better and not the kind of desert it can be, more pupils would do it. The noble Baroness makes a very good point: we are short of language teachers. We have put bursaries in place to encourage language teachers with good degrees into the system, but I will take her points on board.
Lord Quirk
My Lords, further to same point, if the new GCSEs are to have a fair chance, will the Government ensure that the timetable for their introduction fully respects the need for teachers right across the board—not just of foreign languages—to be brought up to speed wherever necessary? Is the Minister satisfied that the revised GCSEs respect the special importance of maths and English as underpinning all the other subjects in the examination system?
Lord Nash
The noble Lord makes a very good point. On the timetable, we are now consulting on the subject content and Ofqual is consulting on the regulations. The consultation on subject content ends on 20 August and Ofqual’s consultation ends two weeks later. We plan to publish final versions of both in September or October. The awarding organisations then have about six months to develop their detailed subject specifications and it will take approximately six months for those to be accredited by Ofqual. The full subject specifications should, therefore, be available in September 2014 for first teaching in September 2015 in all the subjects we have mentioned except languages, where first teaching will not be until September 2016. We believe that is ample time for teachers to prepare.
On the point about English and maths going through the curriculum, spelling, punctuation and grammar are worth 5% of marks in history, geography and English literature, and we have increased that to 20% in English language. In science, we are making sure that maths is much more prevalent.
Lord Elton
My Lords, coursework is a very valuable and flexible means of teaching but it is notoriously difficult to moderate, certainly in history and geography and doubtless in other subjects. The decision to withdraw weight from that element of examination marking is very welcome. The period chosen for the forthcoming consultation coincides with the most disrupted period of timetabling in the secondary sector and the peak workload of the examination authorities, on whose contribution there should also, presumably, be consultation. It also, of course, coincides with the holidays. Is the noble Lord certain that this period is long enough?
Lord Nash
We believe it will be long enough. It is important that schools can see the full picture of reform to GCSEs, A-levels, the curriculum and the accountability framework at the same time. As I said, we do not think it is fair on pupils to continue with the current system for any longer than we need to.
Lord Addington
My Lords, would my noble friend agree that certain groups, such as those with dyslexia or other learning difficulties—I declare an interest here—find coursework a much easier way of accessing an exam result? If it is to be downgraded, will my noble friend give me an assurance that the Government have done a detailed study of what assistance has to be given in examinations, which account for more and more of the marks, to enable this group to pass basic examinations and to access further and higher education, where they have proved that they can succeed? If my noble friend can tell me what has happened, I will be very happy. If he cannot, perhaps he will give me an idea of what type of consultation will be done so that the most modern and up-to-date techniques, such as voice to text and text to voice, might be used to allow these people to access exams on an even footing. We have already heard that we are taking spelling into account. Will the Minister give some indication of what we are doing for this very big group in our society?
Lord Nash
My noble friend makes a very good point. We have consulted with organisations representing SEN groups. The points he makes, particularly in relation to voice and text, are technical and something that we should discuss in detail on a separate occasion. It is very important that we make sure that we have consulted all the right people on this difficult matter.
Lord Sanderson of Bowden
Will my noble friend tell me whether in his consultation he will consult the devolved authorities in Wales, Northern Ireland and Scotland, and whether there is the slightest chance that they will go along with our plans?
Baroness Farrington of Ribbleton
My Lords, I record an interest as having been, many decades ago, an unqualified teacher. I may tell the Minister that in that job I was not equivalent to a professionally qualified teacher and doctor, who was given the pupils with learning and behavioural difficulties to keep him out of the way. I worry about the Government’s approach to professional training for teachers. Like other noble Lords, I am sure, I came across people who were trained after the Second World War, straight out of the forces. Some of them became good teachers, but many of them became dreadful teachers because they knew little about the education process or the development of children.
Will the Minister also be prepared to listen to representations on the problems of summer-born children and their ability to resit examinations, because they can be a full year younger than the rest of the cohort?
Will the Minister give an answer to another question, even if he is not able to reply now? There is deep concern in agriculture and horticulture that the department removed the qualification. How quickly will it be brought back?
Finally, will the Minister insist that when the consultation goes ahead, it will take into account the interests of pupils, and with the right timing for the training of teachers? Even if we all agree that the changes are right, the turnaround time can be damaging to the group of children who are going through the key years when the changes are taking place.
Lord Nash
I thank the noble Baroness for her comments. It is true that we now have the best generation of teachers that we have ever had. However, clearly we need to do more to improve teacher training, which in this country is very patchy. We need both to improve our TT colleges’ standards generally and have more training in schools.
I am aware of the issue of summer-born children and have seen the statistics, which are stark. I would be delighted to discuss the matter further to make sure that this is properly taken into account. The same goes for the agricultural and horticultural industries.
We believe that the turnaround time is long enough, but we will make sure that all head teachers are aware of the issue of the crossover turnaround time.
Lord Bew
My Lords, I thank the Minister for his earlier reply, in which he said that there will be discussions with the devolved Assemblies on the implications of these important reforms. May I ask him about the underlying spirit of these discussions? The Minister for Education in the Northern Ireland Executive—ironically, in this context, a Sinn Fein Minister—has said that he wants to see uniformity of standards maintained throughout the whole of the United Kingdom. Will the Minister reassure the House that this will also be the approach of the Government of the United Kingdom? These will be difficult discussions, but I hope the Minister can shed some light on the principles with which the Government will approach them.
Offender Rehabilitation Bill [HL]
(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Presumption in favour of community sentence orders
(1) Section 152 of the Criminal Justice Act 2003 (general restrictions on imposing discretionary custodial sentences) is amended as follows.
(2) After subsection (2) insert—
“(2A) Where a court has discretion to pass a custodial sentence or impose a fine or a community sentence, the court must not pass a custodial sentence for a term of less than 12 months unless it is of the opinion that—
(a) the requirements of subsection (2) are satisfied, and(b) there are special reasons which justify a custodial sentence,and has had regard to the provisions of section 256AA.(2B) A court passing a custodial sentence for a term of less than 12 months must state in open court the reasons for its opinion that there are special reasons which justify the sentence.”
(3) In subsection (3), after “(2)” insert “or (2A)”.”
Lord Marks of Henley-on-Thames
My Lords, this amendment, in my name and that of my noble friends Lord Dholakia and Lady Hamwee, builds upon the general principle embodied in Section 152 of the Criminal Justice Act 2003, which is, in the words of the section, that:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or … offences … was so serious that neither a fine alone nor a community sentence can be justified for the offence”.
That is a sensible principle that is soundly based on the wealth of evidence that short sentences are not only unhelpful but in many cases profoundly damaging. That evidence has been commissioned by the Howard League for Penal Reform and by many others. The findings are well known to the House. Short sentences are disruptive. They cut offenders’ ties with their communities, with their jobs if they have them, and with their families. They introduce offenders, particularly first-time offenders, to a culture where reoffending is the norm.
It is of course to be hoped that the impact of this Bill will reduce the reoffending rates of this cohort of prisoners by introducing periods of supervision, but balancing a hoped for mitigation of damage against the evidence that we have of actual damage still leads to the conclusion that short sentences are to be avoided.
Our amendment goes a stage further than Section 152 and is an attempt to address the risk that was identified by several noble Lords at Second Reading. The risk is that the availability of short sentences of imprisonment that will carry an automatic period of supervision upon release will make short sentences more attractive to sentencers. The point was put succinctly in particular by the noble and learned Lord, Lord Woolf, who said:
“The Bill will create problems, as has already been indicated, as there will be a temptation in some courts to undermine the objective of the Bill by seeing the proposals for dealing with reoffending as justifying short sentences”.—[Official Report, 20/5/13; col. 653.].
A little later he said:
“What can be achieved by a short sentence in prison can always be better achieved, in my experience, by a community sentence”.—[Official Report, 20/5/13; col. 654.]
The existing provision in the Criminal Justice Act deals with the seriousness of the offence or offences. The suggested provision in our amendment would make it very clear to sentencers that the availability of a period of supervision should not lead to or encourage the imposition of short sentences. The court would have to be satisfied not only as to the seriousness of the offence or offences themselves but that there were special reasons to justify a custodial sentence, and those reasons would have to be stated in open court. The principle would be strengthened that short sentences are to be avoided unless they are really necessary in an individual case. I beg to move.
Lord Williamson of Horton
My Lords, I have a favourable approach to this amendment, which would be a substantial change in practice. However, it is important that we do not present the question of short custodial sentences and community sentences simply in terms of hard or soft sentencing, although that is what actually happens in the media comment on some of these issues. For me, the real question is what arrangement is more likely to protect the public against continuing crime. That is the issue that we face in this amendment. At present, we have short custodial sentences, which do of course protect the public for a short period, but because the reoffending rate is high we also have periods when the public are not protected because we get a continuation of crime. The question is: can we do better?
The amendment does not take away the power of a court to impose a short custodial sentence where there are special reasons for doing so. Like the noble Lord who presented the amendment, I think that part of it is well drafted and correct and that we should concentrate on the special reasons. Furthermore, it requires the court to explain its decision in such cases. Over a period, such explanations will provide a good basis for assessing the effectiveness of the proposals. It is certainly possible—in my view, probable—that the proposal in the amendment, with a presumption for community sentences, will reduce crime and thus benefit law-abiding citizens. Therefore, I have a favourable presumption for the presumption.
Lord Dholakia
I am delighted to support this amendment, which sets out a new clause before Clause 12 and deals with the presumption in favour of community sentence orders, as has been rightly pointed out. This is very much a probing amendment to see how the Minister will react. I will be brief. My noble friend Lord McNally, the Minister, is aware that every time we have discussed legislation on sentencing, particularly lower-level sentencing, I have advocated a cautious approach in favour of community sentence orders in place of custody.
Prison sentences of less than 12 months are the argument that we are putting forward. We all know that under the present provisions, custodial sentences of less than 12 months achieve very little corrective behaviour. On the contrary, we have seen that the impact on an individual without supervision can be very damaging indeed. We want to avoid this risk. Our amendment would help guard against the risk that the welcome provisions of the Bill for post-release supervision for short-term prisoners could lead to the courts imprisoning more people. At present, courts may decide in borderline cases not to imprison an offender because supervision in the form of a community sentence is more likely to divert him or her away from offending. However, with the new supervision arrangements, the court might feel that by imprisoning the offender for a short period it can get the best of both worlds—both the punitive impact of imprisonment and supervision of the offender when he or she is released.
We have discussed similar provisions in previous legislation. The custody plus provision that we introduced at one stage is history now, but we know what happened to it. This would be a short-sighted view as even a short period of custody can lead to an offender losing accommodation and a job and fracturing family links, all of which make it more likely that he or she will reoffend, which is contrary to the provisions that we will discuss in our debate on rehabilitating offenders. Sentences of less than 12 months are too short for a sustained attempt at rehabilitation in custody but are long enough to damage the community ties which those supervising offenders can build on in trying to prevent them reoffending.
There has been a dramatic increase in the number of options available to the courts when dealing with offenders. We know about simple things, such as matters of conditional discharge and fines. There are also community service orders, probation orders and attendance orders. These are just a few of the alternatives, yet prison remains at the heart of our criminal justice system, with other penalties often referred to as alternatives to custody. I believe that my noble friend Lord McNally is on the right track in the way in which this Bill deals with rehabilitation. He is right in putting the emphasis on society to try and deal with more offenders in the community rather than in prisons. That is not in doubt. We are now seeing the impact, which is less use of prison and a drop in the crime rate—a remarkable achievement by the coalition Government. No longer does the argument apply that prison works.
We are not suggesting that grave offences should in general attract other than long sentences, but past experience has led us to believe in two important principles of sentencing. This is not original, radical or revolutionary. In essence, it fits in with many Court of Appeal judgments over the years. First, the court should send to prison only those whose offending behaviour makes any other course unacceptable. Secondly, those who are sent to prison should stay there no longer than is strictly necessary. The amendment is designed to meet the Government’s objective on matters of rehabilitation. We should do this by avoiding the unintended increase in prison sentences. This would be an important discipline that would help against that unintended consequence. This probing amendment would make it possible for my noble friend the Minister to discuss the merit of our proposal with the Sentencing Council and to examine the possibility of setting up some indicators so that the process is adequately monitored.
Lord Ponsonby of Shulbrede
My Lords, I support the amendment moved by the noble Lord, Lord Marks. As he said, the current position is that an offence has to be so serious that a custodial sentence is imposed, but his amendment would put in place a presumption in favour of a community sentence. The additional part of his amendment is that special reasons have to be given in open court. My question to the noble Lord, Lord Marks, if it is appropriate to ask him, is: what might those reasons be? Would a breach of previous community orders be a special reason for it to be announced in open court that a custodial sentence will be passed? While I am sympathetic to the objectives of the amendment, I am open-minded about how it will be applied in court.
The Government’s impact statement highlighted the potential risk of increasing custodial sentences of less than 12 months because the sentencers themselves know that there will be a licence followed by a supervision period, which might be attractive to them. The noble Lord, Lord Marks, referred to the noble and learned Lord, Lord Woolf, making that same point in an earlier debate. My experience is that magistrates and district judges are always reluctant to commit an offender to prison and understand very well the current wording of the guidelines that an offence has to be so serious that only custody will do.
Nevertheless, it is an interesting amendment, which, as I said, I support. It will be for the practicalities of the Government to see whether there is a change in sentencing behaviour if the Bill goes through unamended. I am doubtful whether sentencers will change their behaviour; there will not be more custodial sentences because of the additional supervision period. Can the noble Lord, Lord Marks, give an example of the special reasons, to which he alluded, that might be appropriate for a custodial sentence?
Lord Marks of Henley-on-Thames
My Lords, before my noble friend replies, having been asked direct questions, perhaps I may reply briefly. I envisage that there would be a wide range of special reasons. As the noble Lord, Lord Ponsonby, suggested, they would include a history of breach of previous supervision requirements. However they might also encompass areas of special risk to do with the particular offender. The shortcoming of the Criminal Justice Act 2003 at which this amendment is aimed is that under Section 152 only the seriousness of the offences is taken into account. There may well be reasons to do with the offender that could justify a custodial sentence, but the point of the amendment is to make it quite clear that in the absence of such special reasons, whether they are to do with history, special risk or other reasons, the presumption in favour of a community sentence should apply.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I have found this to be an extremely helpful debate, and as the movers have indicated that it is a probing amendment, I will take it away to consider, but in my reply I will make it clear that we do not think the amendment is necessary at this moment.
I understand the points that the noble and learned Lord, Lord Woolf, has quoted, and that my noble friend Lord Dholakia mentioned, that the Bill might encourage judges to go for the best of both worlds by passing a short sentence that will immediately qualify for the 12 months of rehabilitation. I certainly share my noble friend Lord Dholakia’s view that short sentences are too short to rehabilitate, but just long enough to disrupt, the life of the person sent to prison and introduce them, perhaps for the first time, to all the bad influences that can be found in a prison. On the other hand, as the noble Lord, Lord Williamson, rightly recognised, we face media and—to a certain extent—public opinion that sees community sentences as somehow softer than prison sentences. Part of the aim of our reforms is to position community sentencing and the rehabilitation process that goes with it more positively in the eyes of the public, so that they have greater confidence in it.
I was grateful for the words of the noble Lord, Lord Ponsonby of Shulbrede, in his intervention, because there are two things that become one. He put firmly on the record that in his experience, judges will not be tempted to go down the road that my noble friends fear. I think that he has said before—certainly other magistrates have—that sometimes for a repeat offender or somebody whose circumstances make setting them back into the community even more dangerous to themselves and the community, a short custodial sentence can be of benefit, so the idea of ruling them out entirely is not the way forward.
As my noble friend has explained, Amendment 24B would create a new clause in an attempt to bolster what is often referred to as the “custodial threshold”: that is, the test set out in Section 152(2) of the Criminal Justice Act 2003, to which my noble friend referred, with which all courts must comply when imposing a custodial sentence.
It is perhaps worth noting again what Section 152 says:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
It is an onerous test. It means that a court cannot impose a custodial sentence unless the offence was so serious that a fine or community sentence will not do; in fact, it cannot be justified. It is also worth noting that this test has to be read in conjunction with Section 153 of the 2003 Act. That requires a court when imposing a custodial sentence to ensure that the sentence is for the shortest term commensurate with the seriousness of the offence.
My noble friend’s amendment would add to the existing provisions a requirement, where a court intended to impose a custodial sentence of less than 12 months, that there be “special reasons” which justify the custodial sentence of less than 12 months. We have already heard in debate that magistrates and judges do not believe that they impose custodial sentences other than as a last resort. It is natural to ask what are these special reasons or circumstances that are not covered by the original test. Could the special reasons relate to a history of previous convictions? If so, the current custodial threshold test already applies because, under Section 143 of the 2003 Act, a court must consider relevant and recent convictions as an aggravating factor which makes the offence more serious. It is seriousness that is the key driver in determining the nature of the sentence and meeting the custodial threshold test.
I suggest to my noble friend that the special reasons he may have in mind must already be considered when the court decides on the sentence and whether a custodial sentence is merited under Section 152. So although of course I appreciate what my noble friend is attempting to achieve—that is, a statutory presumption against sentences of less than 12 months—I am not convinced that the amendment would actually do what is intended.
Let me make the point that the Government do not intend or expect that sentencers will change their current behaviour in any significant way in response to the provisions in the Bill. We do not expect to see an increase in the number of short custodial sentences. Offenders who do not meet the custodial threshold should receive community orders or fines. I hope that noble Lords and noble and learned Lords who have judicial experience will agree that it would be wrong for any judge, and contrary to the provisions of the existing law, if a sentencer decided to “up-tariff” an offender into custody so that they could receive 12 months of supervision.
I should also deal briefly with the second part of the amendment, which would require the court to give an explanation of the special reasons that merited a custodial sentence of less than 12 months. I point out to my noble friend that the current law already requires all courts imposing any sentence of any length to give reasons for the sentence passed. That is contained in Section 174 of the 2003 Act. Invariably, a sentencer will begin their explanation of a custodial sentence by setting out why the offence is so serious that it merits a custodial term. The further provision is, I suggest, unnecessary. I understand the good intentions behind the amendment. No one in this House wants to see short custodial sentences passed for offences that do not justify them, but that is why we have the current threshold test and a right of appeal against sentence.
We need to provide sentencers with a range of sentences in which they can have confidence. That is why we made the changes to community orders in the Crime and Courts Act 2013. We have to stop offenders reoffending to such a degree that they end up having to be considered for short custodial sentences in the first place. We also have to realise that some offenders will merit short custodial sentences. We need to focus on making those sentences more effective at rehabilitating offenders so that not only are they imposed as a last resort, they should be the last sentence that the offender receives.
I acknowledge the efforts of my noble friend on this amendment, but, although I recognise his intention, I ask him to withdraw it. Given the spirit in which it has been moved, I will discuss the matter further with the Lord Chancellor and others, but I suspect that our position as I have just set out will remain unchanged.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to my noble friend for that detailed and helpful response, and for the indication that he will consider the matter with us. The question really is whether the existing safeguards are sufficient in the light of the additional supervision requirement and whether there is ground for the concern expressed by the noble Lord, Lord Dholakia, and the noble and learned Lord, Lord Woolf, that there might be a temptation for sentencers to err. In that spirit, I withdraw the amendment at this stage.
Lord Beecham
Lord Beecham
My Lords, this amendment is the identical twin of Amendment 7A, which I moved last week in relation to Clause 2. As I said then, the effect would be to require the necessary supervision to be carried out either by a directly employed public service provider or by a person commissioned by such a public sector provider. I do not think it is necessary to rehearse the arguments again. I suppose that it is unlikely that the ministerial sinner will be in a repentant mood this afternoon, but I live in hope and I beg to move.
Lord McNally
My Lords, I am like St Augustine; I want to give up sin, but not yet. I will deal briefly with Amendment 24C. It would mean that the responsible officer for the supervision of offenders subject to community orders and suspended sentence orders would have to be a public sector probation provider. As the noble Lord, Lord Beecham, said, this is essentially the same amendment applied to community orders as the noble Lord tabled on the first day of Committee for supervision of custodial sentences. As I said then, the Government are committed to providing new supervision for those released from short custodial sentences. To achieve this aim, we, as a responsible Government, have to be able to afford this additional supervision. To do that, we need to reduce the current costs of dealing with offenders.
We also want to encourage innovation among providers of probation services dealing with this group of offenders serving community sentences and suspended sentences. It is important to ensure that we continue to improve the reoffending rates of this group of offenders, as well as of those serving custodial terms. Paying providers in full only where they are successful at reducing reoffending will not only make savings; it will drive down our reoffending rates. I hope that the noble Lord, Lord Beecham, will withdraw his amendment now that I have clarified what the Government’s intentions are.
Lord Beecham
My Lords, I thank the noble Lord for the repetition of the stance that he took the other night. I beg leave to withdraw the amendment.
Lord Woolf
“(2A) In sections 177(1) and 190(1) (requirements that may be imposed as part of a community order or suspended sentence order) after paragraph (j) insert—
“(ja) a restorative justice requirement (as defined by section 212A),”.”
Lord Woolf
My Lords, this amendment is grouped with Amendments 27, 27A, 28 and 29. The group is separated by Amendment 26, which is to be moved by the noble Lord, Lord Marks, and others after we have dealt with these amendments. As I have said before, I welcome this Bill’s emphasis on the rehabilitation of offenders. Those who have been involved in the criminal justice system as long as I have are in no doubt that reoffending is one of the most serious problems that it faces. We have been, until now, extremely unsuccessful in tackling it. Here and there, we have made some progress, often because of initiatives not of the big battalions but of the small ones, which concentrate on conduct directed towards the offender which changes his habits. We know, from experience, that employment, the home and the family are all important elements in determining whether reoffending will take place.
Lord Beecham
My Lords, I commend again the noble and learned Lord for the tenacity with which he has pursued this important area of penal policy. I am entirely in agreement with the thrust of his amendments and I am sure that they will commend themselves to other Members of your Lordships’ House. However, I have one difficulty with his amendment.
Lord Woolf
I hope I will be forgiven if I intervene to say that, with great perception, the noble Lord, Lord Beecham, seeks in Amendment 27A to alter the proposal in Amendment 27. I should make it clear that I support Amendment 27A in preference to my original proposal.
Lord Beecham
I am obliged for the noble and learned Lord’s intervention but perhaps I should decode what is happening for the benefit of those who do not understand—it took me some time—the effect of the amendment as originally drafted.
As originally drawn, the amendment would have removed from Clause 13(7) reference to,
“activities whose purpose is reparative”,
and substituted “restorative justice activities”.
The two things are not the same. Reparative justice will involve doing work, for example, of the kind that I came across when involved in a justice reinvestment project in the north-east. In fact, there were two significant projects: one led to the effective reconstruction of Albert Park in Middlesbrough and the other at Saltwell Park in Gateshead, both Victorian parks which had become very run down. Offenders were brought in to work on these and benefited from being taught skills, which it is to be hoped will be useful later. They made a visible contribution to the communities which they had damaged by their offences. It was a very good scheme.
Taking that out would exclude work of that kind. As the noble and learned Lord said, Amendment 27A reinstates that in addition to restorative justice so that the complete range of options would remain available. I hope that the Minister will accept the noble and learned Lord’s amendment, as amended by my restoration of the paragraph in the original Bill. It would be extremely disappointing, given that the Government are supportive of the principle of restorative justice, if statutory recognition was not incorporated in the Bill at this time and the opportunity not taken in its passage to lend weight to the growing support up and down the country for the concept in our system.
Baroness Hamwee
Not having come with a long speech, I want to register my support and that of my noble friends on these Benches for these amendments and, as the noble Lord, Lord Beecham said, the growing support for the concept of restorative justice. The more I hear about that, the more it seems a very important part of rehabilitation. It has many aspects and one of those fits neatly within the thrust of this Bill and in the new Section 200A. Among the things it can achieve is redirecting offenders who can be described, as many noble Lords have done at previous stages, as having chaotic lives. Being able to put the chaos of one’s life into the perspective that this kind of activity can help achieve is an important objective of rehabilitation.
Lord McNally
My Lords, first, I pay tribute to the noble and learned Lord, Lord Woolf, for the very long campaign he has fought to put restorative justice on a statutory footing. Although I am sure he is right to pay tribute to and thank the Opposition for their support, it is also worth pointing out that it was this Government who actually did that. In the battle to do so, I pay tribute to the former Prisons Minister, Crispin Blunt, who joined battle with me within the department to make sure that we got the first foothold as far as restorative justice is concerned.
I am glad that we have the eagle eye of the noble Lord, Lord Beecham. Of course, reparative and restorative justice are not the same thing. I fully associate myself with the points that the noble Lord made about the value of reparative justice. It can be very significant, in not only what it does but also getting the confidence of the community—the point made by the noble and learned Lord, Lord Woolf. The community sees a derelict site cleaned up or some piece of community work restored as part of reparative justice and has confidence that it is worth while.
I also fully agree with the noble and learned Lord, Lord Woolf, about what we are trying to do in this Bill. We are doing a little smoke and mirrors with the money we have available—I freely confess that—but even if we had all the money we wanted, it would still require that change in culture to which the noble and learned Lord referred.
I hope that we can make this work and carry it through. I am not sure whether we will ever carry the great British press with us. My office always gets very perturbed when I attack the British press. I merely observe that the regular comments on this area of policy always leave me in despair, not about humanity but about journalists.
Lord Woolf
My Lords, I apologise for my failure to refer to Amendment 27A when I spoke to the amendment that was being moved. I should not have made that mistake.
I am very conscious that my successor as the Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, is in his place. If my memory is correct, one of the first things that he did on taking office was to get himself clad as though he was an offender and go off with other offenders to do reparative duties. On that occasion he had very favourable mentions in the media, which were fully deserved, although I understand that he did not find the reparative tasks particularly demanding. The noble and learned Lord has strange tastes when it comes to spending what leisure time he has; he continually indulges in activities that I would have thought were really not for Lords Chief Justice or, may I say, budding presidents of the Supreme Court.
That brings me to the only point that I wish to mention specifically in respect of what the Minister has so ably said about the proposed amendments: wherever possible, you always need clarity and certainty. The fact that I would not have the imagination to do some of the things that the noble and learned Lord does perhaps indicates why, even when you have experienced judges, it is a good thing to have clarity and certainty. Therefore, I ask the Minister to reconsider the amendments carefully and, if he sees fit at a later stage, to come back and tell the House that he welcomes them. That would give a very good signal to the world outside about the seriousness of this Government in tackling reoffending. In the circumstances, I am happy to beg leave to withdraw the amendment.
“(1A) In giving any instructions to the offender under subsection (1), the responsible officer shall have regard to—
(a) the suitability of any appointments having regard to any caring commitments the offender may have and the compatibility of activities with the offender’s family circumstances;(b) the suitability of activities and place specified under subsection (5) if the offender is responsible for a child and it is desirable that the child accompanies the offender.”
Lord Marks of Henley-on-Thames
My Lords, I will speak also to Amendment 30 in the same group. Amendment 26 concerns rehabilitation activity requirements, which are essentially instructions to an offender to attend appointments or to participate in activities. These are imposed as part of a community order or a suspended sentence order by a responsible officer, defined for these purposes as a probation service provider.
This amendment will ensure that such requirements do not conflict unnecessarily with the caring commitments or family circumstances of the offender concerned. That object will be achieved by requiring the responsible officer to have regard first to,
“the suitability of any appointments having regard to any caring commitments the offender may have and the compatibility of activities with the offender’s family circumstances”,
and, importantly, by,
“the suitability of activities and place specified … if the offender is responsible for a child and it is desirable that the child accompanies the offender”.
This may well be the case for people who have responsibility for children, cannot simply leave them and have to take them along to the activity.
Amendment 30 is designed to achieve a similar outcome for any other requirement that might be imposed as a result of such an order. It would amend Section 217 of the Criminal Justice Act 2003. That section currently requires the court to ensure that such requirements avoid conflict with, under Section 217(1)(a), “the offender’s religious beliefs” and, under Section 217(1)(b), the times at which the offender,
“normally works or attends any educational establishment”.
It would be entirely reasonable and desirable to add to that list of matters that are not to be conflicted with a requirement that orders avoiding conflict with the offender’s caring responsibilities. That is what Amendment 30 seeks to achieve.
These amendments are consistent with the Government’s desire to ensure that rehabilitation measures in this legislation are targeted particularly at helping women offenders, who often face particular difficulties within the criminal justice system. They would make the Bill more sensitive to those difficulties and to the demands of family life. The amendments are primarily aimed at avoiding conflict for women offenders who are the subject of community orders or suspended sentence orders, and are designed to enable them to fulfil the requirements of such orders without making it unduly difficult for them to meet the demands of caring for families. However, the amendments are gender-neutral, as you would expect, because many male offenders have similar commitments. It is important that appointments and activities can be arranged in a way that does not interfere unduly with family commitments, be those commitments to take children to school, to be at home when children are at home without alternative childcare or to look after elderly or disabled relatives. The same goes for all requirements, whether unpaid work requirements, curfew requirements or any others. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I support the general thrust of the amendments tabled by the noble Lord, Lord Marks. As he said, they would oblige a responsible officer to have regard to the offender’s caring commitments when arranging a community sentence.
My understanding of the present position is that in probation reports, done by what will be the National Probation Service, probation officers will take into account personal circumstances when making recommendations to the court on the likely sentence. It would be the responsibility of the responsible officer that the sentence is completed as required by the court and in a timely manner.
Lord Ahmad of Wimbledon
My Lords, I thank both noble Lords who have taken part in the debate, in particularly my noble friend Lord Marks for highlighting in his contribution the importance of both family matters and, of course, sensitive issues of faith, which is also relevant to a fair percentage of our prison population.
This group of amendments would place an additional duty on responsible officers instructing offenders under the new rehabilitation activity requirement created by Clause 13, and would also place a new duty on the courts when imposing community orders and suspended orders more generally. To address first the comments of the noble Lord, Lord Ponsonby, about organisations’ or providers’ commercial interests right away, it would be wrong and totally inappropriate for those to supersede any other offender requirements. The whole point of rehabilitation is putting the offender at the centre.
I do not agree with the noble Lord’s three cohorts—the groups he put together. Even the no-hopers are worth a try. We need to ensure, in all the reforms we put forward, that anyone—even people whom society at large perceives as no-hopers—is worth a try. We should seek to assist them to become productive citizens of society.
Noble Lords may also find it helpful if I briefly explain what Clause 13 provides. It creates a new rehabilitation activity requirement that will combine key elements of the existing supervision and activity requirements available under community orders and suspended sentence orders. At present Section 213 of the Criminal Justice Act 2003 provides for a supervision requirement that may be imposed as part of either order. The requirement involves attending appointments during the period of the order with either the responsible officer or another person determined by the responsible officer. Section 201 of the 2003 Act provides for an activity requirement as part of either order. Under an activity requirement, an offender must first, present himself to a person specified in the order for a specified number of days, and secondly, participate in activities specified in the order for a specified number of days.
Clause 13 repeals both those requirements and merges them into a single rehabilitation activity requirement. Under the new requirement, offenders must comply with any instructions given by their responsible officer to attend appointments, participate in activities, or both. These instructions must be given with a view to promoting the offender’s rehabilitation, although they can serve other purposes as well. The effect of the clause is to allow the probation provider who is the responsible officer, rather than the court, to decide the exact details of what appointments or activities the offender should take part in to maximise their chances of turning away from crime.
Amendment 26 would require a responsible officer who is instructing an offender to attend appointments or participate in activities under this new requirement to take account of the offender’s family circumstances and, of course, any caring responsibilities that the offender might have. That would mean ensuring that appointments were suitable, that activities were compatible with the offender’s family circumstances, and that any place to which the offender was sent to take part in activities was suitable if the offender needed to take a child with them.
Amendment 30, although inserted into the clause about programme requirements, would apply to all requirements under any community order or suspended sentence order. It adds to the provision in Section 217 of the Criminal Justice Act 2003 that already requires a court to avoid, as far as possible, any conflict with the offender’s religious beliefs and any interference with his or her work or education. The amendment would add to Section 217 a new duty requiring the court to avoid—again as far as is practicable—any interference with the offender’s ability to carry out any caring responsibilities that he or she might have.
As I am sure that noble Lords will appreciate, the criminal justice system at all points endeavours to accommodate the personal circumstances of an offender. Courts will always sentence an offender in the light of their individual circumstances, together with the circumstances of the offence. Indeed, the law requires, where a court imposes a community order, that the requirements chosen must be, in the court’s opinion, the most suitable for the offender.
In addition to these general requirements, I can assure all noble Lords that there are already important safeguards in place to address childcare and other caring responsibilities where an offender is sentenced by the courts. These issues are covered in the assessments carried out when compiling pre-sentence and other reports that are considered by the courts before sentencing.
Probation staff will also respond to requests by the courts for specific information about family circumstances and courts will sometimes adjourn briefly so that such issues can be considered. If an offender is reluctant to divulge information about their children for fear that they may be taken into care, a post-sentence interview will often elicit the necessary information or the offender might tell their lawyer. If necessary, liaison will take place with local authority safeguarding authorities, or social security emergency duty teams, to safeguard the child or vulnerable person in question. In addition, the Sentencing Council has made it clear in its guidelines that:
“Where the offender is the sole or primary carer of the victim or other dependants, this potentially should be taken into account for sentencing purposes, regardless of whether the offender is male or female”.
Both courts and responsible officers are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the need for the offender to attend appointments and take part in activities in order to secure his rehabilitation against his right under the Human Rights Act to respect for his private and family life. This point was well made by my noble friend Lord Marks.
What this adds up to is a clear indication that the courts already take all possible steps to avoid, as far as is practicable, any interference with the offender’s ability to discharge any caring responsibilities that he or she may have. For this reason, I argue that Amendment 30 is unnecessary. With these assurances and clarifications, I hope that my noble friend will be minded to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am again grateful for that helpful explanation of the Government’s position. The difficulty, as I see it, is something that I hope that we can consider between now and Report. As the noble Lord, Lord Ponsonby, pointed out, we are entering an entirely new era in the provision of probation services. The Minister is entirely right to say that best practice and sentencing guidelines require the courts and responsible officers—who are now in the public sector probation service—to have regard to caring responsibilities. However, there is a risk that in the new regime, which is a new world for probation provision, there will be a departure from best practice or, at any rate, a temptation to depart from it. I hope that, by amending the Bill in a similar way to our amendments, we could send out the message that family commitments have to be taken into account just as faith and education commitments are. In those circumstances, I invite the Government to consider these amendments carefully and sympathetically before we come back. I beg leave to withdraw the amendment.
Lord Beecham
My Lords, my intention is purely to probe for information. Clause 14 seeks to amend Section 202 of the Criminal Justice Act 2003 which, as the Explanatory Notes make clear, is about programme requirements for community orders and suspended sentence orders. As drafted, the clause removes from the Act the provision that an offender can only participate in accredited programmes in places approved by the local probation board or local provider of probation services. My purpose here is to obtain from the Minister an elucidation of what the implications of the amendment to Section 202 of the 2003 Act would actually be. What sort of programmes will be encompassed within the new arrangements? Will they be accredited and who will the providers be? It is as simple as that. If the noble Lord is not able to deal with those questions today I would quite understand, because the clause is not particularly revealing of its purpose. I would be happy to receive a letter which could be placed in the Library, if that would be of assistance.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord Beecham, for that clarification. His reasoning may not have been clear when he notified his intention to oppose the Question that the clause stand part, but it was in his explanation. It may be helpful to reiterate what Clause 14 intends to do. Currently an accredited programme can take place only in premises that have been approved by a probation trust or other provider of probation services. There is therefore a slightly redundant step built into the process for delivering accredited programmes, whereby trusts currently have to set up premises for programmes and then approve those premises themselves before courts can require offenders to attend. Clause 14 removes this requirement. Although probation providers will still want to satisfy themselves that a programme’s premises are suitable for those attending, as a result of the amendment there will no longer be a formal requirement in law for them to ratify or sign that off internally before courts can require offenders to attend.
Parliament has already approved a change in the law that means that the responsible officer, who is the person responsible for delivering the requirement, now chooses the accredited programme that the offender must follow. This was previously in the gift of the court. This change was made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and commenced in December last year. As a consequence, the court no longer specifies where the offender must go to participate in the programme but simply imposes a programme requirement and sets the number of days on which the offender must take part.
The detail of the requirement is now in the hands of the provider, who is best placed to know which programme is the most likely to promote rehabilitation. This also means that where it emerges that a different programme would work better—for example, the offender starts on a cognitive programme but it becomes clear that a domestic violence programme would be better—the responsible officer can switch the programme without taking the order back to court. The amendment in Clause 14 merely furthers the principle of operational discretion for providers by removing the largely redundant requirement for formal approval of a place as suitable for offenders subject to a programme requirement.
In closing, I reassure noble Lords that the Government see a continued place for accredited programmes under our new framework for delivering services for offenders. Accredited programmes are evidence-based and developed from the academic literature on what works. Where interventions have a substantial degree of evidence for their effectiveness, it is important that we build on that success. Those advising the courts through pre-sentence reports will continue to be able to recommend a programme requirement where a particular intervention is available locally, and where probation professionals believe that it is the right way of dealing with the causes of an individual’s offending. Based on that clarification, I urge that Clause 14 should stand part of the Bill.
Lord Beecham
I am very grateful to the Minister for his clarification. It occurs to me to ask whether it would be envisaged that a provider of services in respect of the premises to which the noble referred could require, for example, repair work to be carried out for the benefit of the provider. That potentially would create a conflict of interest. I do not ask for an off-the-cuff response, but I would be grateful if the Minister would look at it.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendment 32. I suspect that on Amendment 31 I am in for a little more teasing from my noble friend Lord McNally. The noble Lord shakes his head; that is a shame. In that case I am in for more teasing from the noble Lord, Lord Ahmad.
Clause 16 would insert a new section into the Criminal Justice Act 2003, with regard to the permission that is required before an offender who is the subject of a relevant order may change residence. In new Section 220A(4) we are told that there are two grounds available to either the officer or the court, which in effect is the appeal body here from a responsible officer’s decision. I would like to be completely sure that these are the only grounds. I am sure that they are, but I wanted to make the point.
We also wanted to add another provision which would, in effect, alter the presumption in these circumstances. When refusal was given, there would not simply have to be an opinion that a change of residence would be likely to prevent compliance with a requirement or hinder rehabilitation; it would go further. The purpose of the requirement or the rehabilitation would have to be significantly less likely to be achieved if the offender were to change residence. The reason is that a restriction on moving one’s home or one’s household—possibly having to move because of family problems such as the offender and partner splitting up, or because there are job prospects somewhere easier to reach from a new home—are all extremely important and part of rehabilitation. I am not convinced that every possible circumstance is covered by subsection (4)(a) and (b) of new Section 220A. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, the noble Baroness, Lady Hamwee, raised some interesting points about the role of the responsible officer when an offender applies to change their residence. When considering this amendment, I immediately thought of all the potential problems that might arise. There is also the general point about the level of independence of judgment of the responsible officer when considering these applications. Two questions came to my mind. What would be the position if somebody with a series of convictions for domestic violence wanted to move into a house with a new girlfriend? That might hinder rehabilitation; it would be a judgment that would have to be made by the responsible officer. I do not know what the result might be. I am not sure that the responsible officer would necessarily be told that that was the situation.
Conversely, what would happen if the girlfriend wanted to move into the offender’s current address? If told about it, the responsible officer may have a responsibility to the new girlfriend to ensure that she is informed of the offender’s previous convictions. These are difficult matters which need a lot of expertise to be able to deal with them and there needs to be guidance—maybe non-statutory guidance—for the officers. In general, I am sympathetic to the amendments which the noble Baroness has moved, but I am conscious that there may well be many problems with making those decisions.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Hamwee for moving her amendment and the noble Lord, Lord Ponsonby, for his contribution.
Before responding to the substance of the two amendments, it may be helpful if I briefly set out the purpose of Clause 16. In essence, it would place a new duty on offenders serving community orders or suspended sentence orders to seek permission from their responsible officer or from a court before changing their residence. It replaces the existing requirement for offenders simply to notify their responsible officers after they have moved. It is intended to deal with cases where an offender moving from one probation trust puts at risk the effectiveness of their rehabilitation. For example, a move to a different area may bring to an end an established relationship with the offender’s supervisor. Instead, they may have to start again with a new supervisor from a different probation trust or, in the future, a different rehabilitation provider.
Noble Lords will know that the personal relationship between offenders and their supervisors is important to reducing reoffending. Evidence suggests that offenders with a positive relationship with their offender manager are less likely to offend. This will be particularly important with a move to a through-the-gate model of support, where an offender may have had contact with the same mentor or supervisor before and after release. Another example is a case where a specialist programme that the offender is attending is not available in the area that the offender is proposing to move to. In such cases, a court or responsible officer may consider that ending participation in that programme may set back the offender’s rehabilitation.
Clearly, there are many reasons to support, rather than prevent, an offender changing residence. For example, an offender may be moving to live with family or to take up a new job. We recognise that there will be many cases where a move would not have any negative impact on rehabilitation or on compliance with the order. For example, it may be a move of only a short distance which does not prevent the offender attending required appointments. Even with a long-distance move, programmes may be available in the new area that are equally as appropriate as those in the old area. We recognise this and have built it into the way that the clause is structured. The clause limits the circumstances in which a court or responsible officer can refuse permission to change residence to only two scenarios: where the move is likely to prevent the offender complying with a requirement of the order; or where the move would hinder the offender’s rehabilitation.
Amendment 31 would make explicit that these are the only grounds on which a court or responsible officer can refuse permission to change residence. However, the effect of the way that the clause is drafted is to provide already for these two circumstances, and only these two circumstances, to be grounds for refusal. I am very happy to make that clear to my noble friend Lady Hamwee. I hope that, on that basis, she will see fit to withdraw the amendment.
The noble Lord, Lord Ponsonby, who always comes to these matters with great experience and expertise, gave the example of an offender who had been committed for domestic violence. This situation would require a subjective assessment to be made and it would be for the responsible officer to weigh it up in the risk assessment. This is the sort of decision that professionals make on a daily basis. I listened with great care to the noble Lord’s suggestion about looking at the guidance. I am sure that we will look at it, and I take on board the comments that he made in that respect.
Amendment 32 would provide that a court or responsible officer cannot refuse an application to change residence unless the offender’s rehabilitation or compliance with a requirement of the order would be significantly less likely to be achieved. I hope that I can reassure my noble friend on a number of points. First, even if a move is likely to prevent compliance or would hinder rehabilitation, courts and responsible officers will still have to balance this with other factors. For the purposes of this clause, both courts and responsible officers, whether probation staff or from the voluntary or private sectors, are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the impact of the proposed move on rehabilitation or compliance with the order against the offender’s interests in making such a move. They will have to consider the availability of rehabilitative support in the area that the offender wishes to move to, and the extent to which an offender could comply with a requirement in the new area. They will also have to consider the offender’s Article 8 rights. For example, an unemployed offender may wish to move to take up a new job or for family reasons—for example, if their partner is taking up a new job or if a parent is unwell and they need to provide them with care or support. In many cases, factors like these would outweigh concerns about compliance with a requirement or continued rehabilitation. It would be open to a responsible officer to take the order back to court to ask for it to be varied or revoked to suit the offender’s new circumstances.
I would also point out that the clause provides the safeguard of allowing offenders to apply to the court for a decision in cases where the responsible officer has refused permission to change residence, so in cases where offenders feel there are compelling reasons to move which outweigh any potential impact on compliance with a requirement or rehabilitation, they would be able to apply directly to the court to reconsider their case. I hope that these points reassure my noble friend, and, indeed, all noble Lords, that this clause provides a means of supporting the continuity of rehabilitation in cases where a change of residence could put it at risk without impinging on offenders’ wider family or work commitments. With those reassurances, I hope that my noble friend will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, of course, I shall not pursue the amendment. The points made by the noble Lord, Lord Ponsonby, are very interesting, but I do not think that my amendment would alter the situation either way. He has no doubt made us all start to look at this from a different perspective, which is extremely helpful. The problems raised go wider than just this situation.
When the Minister started to explain some of the reasons that might be behind a decision here, I rather felt that we were going a little close to what might be for the convenience of the provider rather than to the benefit of the offender. I fully accept the importance of the relationship between the offender and the individual who is undertaking the supervision, but that could easily tip over from a company looking at this from a commercial point of view to what might tick the right boxes for that provider.
I was glad to hear the Minister say that there might be many reasons to support a move, but the provisions of Article 8 of the Human Rights Act would seem to provide higher obstacles to a challenge on the part of an offender than would be the case if something of the sort of my amendment on the issue of balance were written into the clause. The amendment would give much more straightforward, less expensive grounds for appeal, as it were, from the decision of the responsible officer to the court. Of course, Article 8 will apply whether we say so or not, but I know that the Minister would accept that praying it in aid to the extent of a challenge to a decision is quite heavy. I will read the Minister’s explanation, as well as having listened to it, but for the time being at any rate, I beg leave to withdraw the amendment.
Lord Woolf
“Provision for female offenders
(1) Section 3 of the Offender Management Act 2007 is amended as follows.
(2) After subsection (2) insert—
“(2A) Arrangements under subsection (2) shall require providers of probation services to make provision for the delivery of services for female offenders which take account of the particular needs of women.”
(3) After subsection (5) insert—
“(5A) Arrangements under subsection (5) shall make provision for the delivery of services for female offenders which take account of the particular needs of women.””
Lord Woolf
I have the advantage of moving this amendment with the support of the noble Baroness, Lady Howe, and the noble Lord, Lord Beecham. It deals with provision for female offenders, which is another area in which the criminal justice system has slowly—painfully so in this case—moved forward to recognising that female offenders have particular needs. The recognition of those needs, which are very great and cannot be disputed, is of the greatest importance if we are to achieve the purposes of the Bill with regard to avoiding reoffending.
There will always be a greater risk of females committing offences if their particular needs have not been taken into account. Of late, great strides have been made—I pay credit to the Government for this—in trying to give positive attention to this problem. There is now a Minister who has particular responsibilities here. Those in the criminal justice system who know her have great confidence in her, and I apprehend that what the amendment seeks to do is something the spirit of which both the department and the Government as a whole would support.
It is something that was considered very ably by the noble Baroness, Lady Corston, in her well known report dealing with female offenders, which has not been given sufficient attention until now. I hope that one result of the new approach indicated by the Offender Rehabilitation Bill will be to enable the Government to acknowledge the importance of that report and give effect to its provisions, as suggested in these clauses. They require that the Offender Management Act 2007 should be amended to require providers of probation services to make provision for the delivery of services for female offenders that take account of particular needs of women with regard to Section 3(2) and (5) of the 2007 Act.
It would be a huge encouragement to those who have been involved in trying to improve the facilities and arrangements for female offenders if this amendment were to be accepted. I hope the Minister will give it careful consideration in due course. The noble Lord, Lord Beecham, and, in particular, the noble Baroness, Lady Howe, drew attention to the importance of this at Second Reading. I mentioned the matter as well. I hope that enough has been said on this subject in recent times to enable the Minister to respond positively to these proposals. I beg to move.
Baroness Howe of Idlicote
My Lords, it is a great pleasure to support the noble and learned Lord Woolf’s amendment, which is an important one. The best thing about this whole Bill is the emphasis on keeping people out of prison if you possibly can, dealing with their problems and the rehabilitation required to get them back into society, where they can play a useful role. It is very much at the heart of what we are trying to achieve.
However, I have to say that we are all puzzled about why women and their special needs are not part of the original Bill. They have been rather brushed to one side. The document, Transforming Rehabilitation: A Strategy for Reform, notes that quite a high proportion of the consultees themselves specifically wanted the special needs of women to be delivered on. The more one thinks about it, the more surprising it is that women have been put to one side, at least for the moment, despite the fact that the strategy makes the point also made by the Prison Reform Trust, with all its expertise, that,
“the review of the women’s custodial estate … will also strengthen services for women released from prison”.
However, it does not go on to explain how that will be done.
I want to emphasise several points before I sit down. Although I accept entirely the point made by the noble Lord, Lord Marks, that carers come from both sexes, the vast majority of those caring for the children in a family and the heads of single-parent households are women. We know that many women prisoners themselves come from chaotic backgrounds and are likely to be have been abused in their own childhoods. As regards drug trafficking, quite a number of them—certainly the ones I have met in women’s prisons—have been used as mules for the purpose of transporting drugs at the request of their partners. All this shows that the one thing that must not happen, if it is humanly possible—of course there are exceptions where prison must play its part—is to send women to prison. It should be the last resort because it is the children who suffer. Often in such circumstances, the children have to be taken into care because the family home is broken up or the landlord can no longer accept the household.
I hope that we will be given an explanation of why specific attention has not been paid to women’s needs in this Bill. I know that we have been told that we will be given something later, but not taking these issues into account as the various plans unfold is something that I and others find puzzling and rather worrying. I shall give an example. A women’s prison is to be closed down because it is to be used to provide for the special needs of young offenders. That is fair enough, because those young offenders may well have special needs, but yet again one more place will no longer be available for women. No doubt it means that if they have to be sent to prison, they will be located even further away from their families.
I hope that all this will be taken into account and that we will be given an explanation of why women have been left to one side. I think that we need this more than anything else. I do not believe for a moment that the Government are thinking of women as second-class citizens, and yet that is very much the impression given by the fact that at this point, when we are looking at an important and valuable Bill, their needs are not being taken into account.
Lord Ramsbotham
My Lords, I, too, support the noble and learned Lord, Lord Woolf, on this amendment. Like my noble friend Lady Howe, I am sorry that yet again we should be coming to an important Bill like this and raising the issue of women as something that has been admitted, rather than actually trying to discuss in more detail exactly what should be done with and for women.
We have discussed frequently women in prison, but we have not discussed women in the community so frequently. On several occasions when it has come up, I mentioned the need for specialist women offender teams around the country. We have also mentioned the possibility of a women’s justice board, which would be responsible, like the children’s justice board for children, for looking after both women in custody and women in the community. I hope that the Minister will recommend to his colleague, to whom the noble and learned Lord, Lord Woolf, referred, that she should look very carefully at this because there will be a need for somebody to keep oversight over the cohorts of women around the country who are being subjected to myriad different providers, and there will need to be consistency as well as quality in the content of what is done for them, so I hope account is taken of that in considering this amendment.
Baroness Corston
My Lords, I am delighted to support the amendment tabled in the name of the noble and learned Lord, Lord Woolf. It is 15 months now since we had the first vote specifically on this issue that I can remember. At that time there was a tied vote and we were promised a strategy. Subsequent attempts to amend legislation to provide for gender-specific services have failed.
My reading of the current government policy on transforming rehabilitation is that we are going back 10 years, because we are going to have an offender strategy that can be tweaked for women, rather than asking what kind of strategic priorities we need for women offenders. Those are missing. We have a two-page statement, not a strategy, from the Government about what is going to happen for women. If this was a serious undertaking, this kind of amendment would have formed part of the Bill. It would not be up to Members of the House to try to put it into the Bill.
The other thing that I found very troubling during the course of my review was how many women knew that their lives were spiralling out of control but knew that there was nowhere they could go to get assistance. That is what was so amazing about the seed-corn money, although it was £15 million, that the previous Government put into keeping women out of prison by providing women’s centres as alternatives to custody. I know that the Minister has visited at least one, and I am sure that noble Lords who are interested in this area will have done the same. You hear stories of women who have gone through a period of the most amazing redemption because they have had these gender-specific services from people who understand the reality of women’s lives and the centrality of family and children. They understand that when women go to prison, unlike men, there is no one to keep the home fires burning, and they usually lose their children and do not get them back.
All these issues can be dealt with easily if you make provision statutorily for gender-specific services, because people have to think about it. It is not a question of women being an add-on. I accept that, given the overall prison population—there are about 86,000 men in prison and 4,000 women—you could say that women are an add-on. However, given that some 17,000 children a year are affected by their mothers’ imprisonment, and a significant proportion of those children end up in prison themselves, such provision seems to me to be the most important preventive strategy. I cannot for the life of me understand why the Government are so reluctant to have this in the Bill, because it would be a matter of pride to do so. I know that the Minister will tell me how much has happened, and I will listen with patience but with some irritation, because, given my experience in the 21 years since I first set foot in a women’s prison, I know that it will not be enough. So I say to the Government: if this amendment is not accepted, we really want to see something that will work.
Baroness Hamwee
My Lords, my noble friend Lord Marks spoke on the needs and importance of specific services for women. I hesitate to follow the noble Baroness because I cannot be nearly as powerful as she was, but I cannot keep silent either. I spoke on the issue on the previous day in Committee. I appreciate that this is a different amendment that addresses a different matter from those that we have looked at before. On short sentences and a period of supervision, I want to make one specific point before I come to the more general. Unless the supervision requirements are appropriate, for all the reasons that we have talked about, the likelihood of a breach of the requirements by the offender must be higher, and that will mean that she is back in custody. That is exactly what we want to avoid.
I know how strongly my noble friend Lord McNally feels about this, and I know that we are going to hear that work is under way, led by his colleague, Helen Grant. However, I will make one point and ask one question. My point is that a marker of some sort should be put down that shows the importance with which this House regards this issue—like the noble Baroness, one finds it difficult to find the words, but they are not specialist services, because they are not an add-on; they are a different group and they need different services. Furthermore, the marker should acknowledge the importance with which this issue is regarded outside this House by, I think, everyone in the offender management penal reform field to whom I have spoken.
My question to my noble friend, who is probably at least as frustrated as I am, is what amendment, if this is not accepted, would put down that marker, get past the Treasury, if that is where the problem is, and not restrict the progress of work done in the MoJ but enable us to make the point? Many noble Lords have put down a string of amendments. If none of those is going to get a tick from the Minister, can he help us—I know that he is on side—by suggesting what would take the matter forward at this stage?
Baroness Linklater of Butterstone
My Lords, I, too, cannot remain silent. I am so glad that we are privileged to have the noble Baroness, Lady Corston, to add her voice to this debate. The crucial thing is that we have not managed to listen hard enough before. There is no question that women are different from men. They are not just differently shaped; they have particular needs and they are absolutely specific. We have known this for years. It is possibly boring but quite graphic to look at just a few of the facts and figures. Women serve very short sentences on the whole, with 58% serving six months or less and many only four months, or a matter of weeks. The sentences are for non-violent offences; we do not need to be protected from these women. Some 81% are for shoplifting, and we know that most shoplifting is for food for their children or for drugs. About 60% of the women, in fact, are drug users.
The final thing, which the noble Baroness, Lady Corston, also mentioned, is that the collateral damage of the imprisonment of women is absolutely unquantifiable. If more than 17,000 children a year experience and suffer separation from their mothers, that damage does not really take a lot of imagination to assess. Some terribly graphic reports have been published. For many children, to be separated in this way from their parents is like a bereavement: in their eyes, their mothers have died. This is a terrible thing to have to experience, but this is what we are doing to this primarily non-violent, very vulnerable, group of people from whom we do not need to be protected.
The centres, which we have models for, do exist and it would not be difficult for the Government to develop them along those lines. Several years ago now, when I chaired the Rethinking Crime and Punishment initiative, we funded the Fawcett Society, which issued an important report, before even the noble Baroness, Lady Corston, saying that we should make this specialist provision. We now have one or two important Together Women groups, and a total in this country of about 55 groups altogether, which is not very many. We have the 218 service in Glasgow and the Willow partnership, which we are very proud of, but they are a drop in the ocean compared with the needs of these women. I have been to a women’s centre recently and not only were the women telling me how much their lives were being changed but there were people at the centre who had been users and were now coming back to support other people who were going through the same terrible experience.
The facts and the figures, as well as this kind of affective argument, seem irresistible. I hope that when this amendment talks about the particular needs of women that the Government will have ears to hear and will take this forward immediately.
Lord Beecham
My Lords, my noble friend Lady Corston, to whom tribute has been paid again today—as it is regularly, and rightly, when these matters come up—has spoken with her customary passion about the problem which her report so significantly addressed. The implementation of her report has, alas, as yet not gone far enough by any means. The Committee will, I am sure, agree completely with the thrust of her powerful argument this evening. I certainly support the amendment moved by the noble and learned Lord, to which other noble Lords have spoken.
It should not be necessary, but it still clearly is, to remind your Lordships’ House, and indeed others, of the impact of the present system on women offenders, particularly those who end up in custody. There is a shockingly high rate of suicide and self-harm for those in custody; it is much more significant than it is among male offenders. We are in essence discussing those who perhaps will be in custody for a short time, but even short-term prisoners will be subject to the temptation of self-harm, and that will apply, particularly again, to women. It is important that we look at this issue for a discrete group and take the sort of measures that deal properly with their problems. Although we are concerned today with the provisions of this Bill, that will need to be at various levels of the justice system. I hope we will have a sympathetic and practical response from the noble Lord when he replies.
I take this opportunity to refer again to resettlement prisons and women, because there is an issue here that that was mentioned on the last occasion in Committee and needs stressing: the proposal, which is welcome in principle, for resettlement prisons for those in custody who will be returned to the community to be nearer the place to which they will return. I pointed out that there are only 13 women’s prisons in this country and that there might well be a problem with housing women in a women’s institution close to where they live. It is a significant issue and a concern to organisations involved with this issue. It would be wrong to house women in an essentially male establishment simply because that happens to be nearer and there is no women’s institution in the appropriate geographical area. In fairness, in replying, the Minister did say:
“it is very important that we make the best use of the existing provision for women offenders in the prison estate, both taking account of its size and the geographical spread. We will be consulting with both providers and stakeholders to design the most suitable resettlement arrangements”.—[Official Report, 5/6/13; col. 1270.]
It is only a week since the noble Lord addressed the issue, and we are not expecting a result now, but an indication of the timescale for the consultation and who will be consulted would be welcome and would help to allay concerns about this issue. I hope we can get a sympathetic response.
Lord McNally
My Lords, this has been an extremely useful debate, fully living up to the reputation of this House for taking an ongoing interest in this matter. I thank the noble and learned Lord, Lord Woolf, in particular, for bringing it forward. We have had a very useful debate, with a number of interesting points being raised. We already realise that if the problems of women within our criminal justice system could be solved by reports, or even clauses in a Bill, they would have been solved a long time ago.
Perhaps part of the problem, going back to what the noble and learned Lord, Lord Woolf, mentioned earlier, is that we also need a change in culture and general approach. We have made painfully slow progress in this area. Too many women are in our prisons. It is palpably obvious that women have different problems and needs and, as the noble Baroness, Lady Linklater, has reminded us, the collateral damage from the imprisonment of women is substantial. Nothing divides us on this.
I was pleased that the noble Baroness, Lady Corston, made her contribution. I regret that her assessment is that we are going back 10 years. I do not think that we are. That is not the direction of travel. However, we face difficulties. She knows that her report was not implemented in full by her Government because of some of the financial constraints that face this Government. I have never moved away from the fact that her report is a template for action and we will re-examine it in the light of what we are trying to do with these reforms.
Of course, one of the key factors of these reforms is that we are picking up the challenge of dealing with sentences of under 12 months. As has been pointed out on a number of occasions, it is that cohort, if that is the new in-word to use, that has the greatest preponderance of women offenders. So, in that respect, this legislation gives us the opportunity to deal with and respond to the challenges posed by women offenders in a positive way.
A number of points were raised during the debate. The noble Baroness, Lady Howe, mentioned the review that is under way of the women’s estate. The Justice Secretary is conscious that female offenders have particular needs and that the custodial female estate should be organised as effectively as possible to meet gender-specific requirements while delivering best value to the public. That review is expected to report by the end of the summer. I do not know what that means. I was told today that summer has not yet started but it will report by the end of the summer.
Of course, although the implementation of the Corston review has not been complete, the National Offender Management Service accepted 40 of the 43 recommendations. Progress has been impressive, including ending the mandatory full searching of women in reception and moving to a risk-based approach; embedding gender-specific standards for women in all areas of prison regimes; encouraging greater use of specialist accommodation in the community for offenders who pose a high risk of harm; and introducing the women awareness staff programme for those in the criminal justice system and the community who work with female offenders. So, as I say, I do not believe that it is entirely negative.
The noble Lord, Lord Beecham, made a valid point on resettlement accommodation for women. We will look at it and think about it. I agree that the issue poses real problems.
Interestingly—I lift the veil on the workings of the MoJ—we had an interesting discussion this morning when my noble friend Lord Ahmad made exactly the point that the noble Lord, Lord Beecham, made about whether there is a lacuna in terms of black and ethnic minorities. If we had had the common sense to listen to my noble friend this morning, I would have had a full answer this afternoon. However, it is a point that should be looked at.
The approach of the Bill, which has given rise to some of the issues in the debate today, is, basically, let a thousand flowers bloom. Let us see what comes back in offers, ideas and approaches and consider how we can reshape the service to it. Again lifting the veil on the MoJ, I have argued at times whether the contracts should be women-specific—and, who knows, that might happen—but the reason that that is not there at the beginning is to encourage the widest possible contributions to the debate.
I am sure that no one in the House disagrees with the principle underlying the amendment. As the noble and learned Lord knows, the Government fully share his belief that service providers should take a different approach where there is a need to differentiate provision for female offenders. Where the challenges are different, our response should likewise be different. The Government’s commitment to ensuring the provision of services that recognise and address the specific needs of female offenders where they are different from those of male offenders is set out clearly in our recent Strategic Objectives for Female Offenders strategy. I am sorry that the noble Baroness, Lady Corston, thinks that it is rather sparse, but it does point the way forward.
All probation trusts are required to make appropriate provisions for women in the community to address factors associated with their reoffending. One of the Ministry of Justice equality objectives for the period 2012-16 is the,
“provision of gender-specific community services to improve support for vulnerable women in the criminal justice system”.
Let me make it absolutely clear that this objective will continue to apply as we move to a new framework for supporting offenders in the community.
Our plan is to open up provision to a diverse market of large and small providers. This will provide the opportunity for groups delivering women’s services, which are often small, community-based organisations. Helen Grant, the Minister for Victims and the Courts, and I have visited a number of these women’s centres, as the noble Baroness, Lady Corston, mentioned, and I have been greatly encouraged by the work that we have seen being done with female offenders to help them turn their lives around. I pay tribute to the work of Helen Grant. She has made a significant impact since she came into her role. I know of her commitment to this issue and that she will particularly appreciate the tribute from the noble and learned Lord, Lord Woolf.
I am equally clear that our new framework must encourage providers to work in partnership with other public services to ensure that the broader life-management issues associated with women offending, such as drug misuse, domestic violence and sexual abuse, are addressed. As we design the new commissioning process, the need to ensure the delivery of services that take account of women’s needs and their often troubled backgrounds will be embedded into the new approach.
Service specifications for the commissioning process will include gender-specific outputs, where appropriate, which providers must meet. In order to win contracts, service providers will be required to demonstrate that they understand and will respond to the particular needs of female offenders where these differ from those of men. This will include, for example, taking account of women’s family and caring responsibilities. Many female offenders have children, and any activity requirement clearly must take account of their needs too. There will be a robust approach to evaluating bids to ensure that potential providers are offering innovative and effective services to female offenders.
The payment-by-results approach will in itself be an incentive to providers to take a gender-specific approach where appropriate. Put simply, they will not rehabilitate female offenders unless they take account of and address women’s needs and the factors that lead them to offend. I also reassure noble Lords that those safeguards for female offenders will not end with the commissioning process. Once contracts have been awarded, contract managers within the Ministry of Justice will monitor service delivery to ensure that key outputs for female offenders are being delivered. Service providers will be supported by guidance on working with female offenders and the sorts of provision that are known to be effective.
Lord Woolf
I thank the Minister for that reply. I know the sincerity of what he says, but patience has limits. The House has indicated on previous occasions that it feels that something should appear in statute to make these responsibilities absolutely clear to not only Ministers but everybody concerned with female offenders. Although it is pleasing to hear that some things are happening, I fear that the reassurance that we get from Ministers will not continue to satisfy this House. On Report, I hope there can be something positive proposed to deal with a situation that has been left unacknowledged in legislation for far too long ere now. In the circumstances, I will not press the amendment and beg leave to withdraw it, but this is certainly not the end of the matter.
Lord Beecham
“Veterans’ courts pilot
(1) Veterans’ courts shall be established for the purpose of assisting the rehabilitation of ex-service personnel convicted of offences for which non-custodial sentences could be imposed by the trial court.
(2) Subject to subsection (3) below, before instituting the provision of veterans’ courts, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of each House of Parliament.
(3) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated to include consultation with magistrates, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.”
Lord Beecham
My Lords, this amendment reflects the suggestion I made at Second Reading that the UK should follow the precedent set by the United States and establish veterans’ courts to supplement the trial courts when ex-service men and women plead guilty to or are convicted of crimes for which non-custodial sentences could be imposed, to assist the rehabilitation of those ex-service personnel. Consistent with earlier amendments moved in relation to payment by results and probation, it calls for such a scheme to be piloted before being eventually embodied in the system on the basis of a resolution to be approved by both Houses of Parliament.
There were two sources of inspiration for this amendment. The first was a report published in 2011 by the North East Regional Joint Health Scrutiny Committee, led by officers of Newcastle City Council, looking at the mental health needs of the ex-service community. The second and in many ways more relevant source was a recent seminar on veterans’ treatment courts organised by Justice for Vets and the Community Covenant—two voluntary sector organisations—and the city council. That took place in Newcastle about three weeks ago.
Estimates of the numbers of UK former service men and women vary. The Department of Health says that there are around 5 million in England while research by King’s College for the Department of Health and MoD in 2010 estimated only 3.8 million, with about 20,000 men and women leaving the forces each year—a figure likely to grow now that the size of the Armed Forces is being reduced. Around 2,000 service men and women a year are discharged on health grounds, with the main issues being adjustment disorders, depression and alcohol abuse. They have a significantly higher rate of post-traumatic stress syndromes than the general population.
Evidence collected by a community veteran mental health project in the north-east suggests that most mental health problems occur after discharge. There are varying estimates, too, of the numbers in the criminal justice and penal systems. NOMS figures are at the lower end of the range, but even if they are right, between 3% and 5% of the national prison population at any one time may be veterans, and many more veterans will have been before the courts and received non-custodial community sentences, probation or suspended sentences, giving a total of around 20,000. The incidence of mental health disorders among the 16-to-44 age group of veterans, their families and carers—the so-called ex-service community—is threefold that for the UK population, and combat stress referrals have risen by two-thirds in the past few years. Early service leavers who are young are particularly vulnerable to emotional and mental health problems and are up to three times more likely to commit suicide than the general population.
The seminar to which I referred was addressed by a former state prosecutor from Little Rock, Arkansas, who has also served in senior positions in the state’s correctional service. He describes himself as “not a bleeding-heart liberal”. With that experience, one might well accept that. Nevertheless, he enthusiastically espouses and promotes the concept of veterans’ courts. The presentation included a video by a senior trial judge who also presides over the veterans’ court in Little Rock.
The US has some 20 million veterans, around five times the number in the UK, and in the last five years every state has established a veterans’ court. The offender can be referred from the trial court and is required to attend monthly so that progress can be assessed. A veteran mentor is appointed and systematic efforts made to help the offender deal with the range of problems with which he or she may have failed to cope. Substance abuse, mental health issues, lack of housing, skills or a job, family breakdown and other problems are addressed by development agencies. Failure to co-operate on the part of the offender leads to recall by the trial court and the possible imposition of a custodial sentence.
The system has proved remarkably successful. The court in Buffalo, New York, which I think was the first to be established, has a 100% success rate in avoiding reoffending. In Minnesota, reoffending rates fell very sharply for 83% of those participating. The potential savings were found to be considerable. In the analogous system of US drug courts around $5,700 was saved per participant. Even Texas, a state not known as a stronghold of bleeding-heart liberals, is looking across the board in its justice system for more cost-effective approaches than imprisonment. When considering the position of men and women who have served in the Armed Forces, it is surely time for us to extend the reach of the military covenant by piloting veterans’ courts here.
I suggest beginning with the north-east. The region is the largest contributor of recruits to the armed services, and veterans comprise around 5% of its prison population of 10,500 against an ONS estimate—which may be on the low side—of 3% nationally. The 2011 scrutiny report produced a series of recommendations covering services for veterans, especially in the mental health arena, which play such a significant part in offending and reoffending. This is influencing the necessary development of a more co-ordinated approach between the relevant agencies. The potential clearly exists to build on this experience so that the MoD, NHS bodies—including health and well-being boards, clinical commissioning groups, the national Commissioning Board and trusts—councils with their responsibilities for housing and social care and the Department for Work and Pensions can, we hope, help to prevent ex-service men and women from offending in the first place. Together with the probation service and the voluntary sector, these bodies will help to prevent reoffending should they fall foul of the law.
Having discussed the problems in terms of policies and statistics, I should like to illustrate their nature by recounting the story of one individual who was helped by probation and About Turn. About Turn is a charitable organisation in the north-east which is headed by a former serviceman and supports veterans.
Mr A comes from a service background with a father who served for more than 20 years in the Army. Now middle-aged, Mr A served for nine years as a young man before leaving the forces at the request of his wife. Unfortunately they divorced and he began to suffer alcohol problems. He joined the TA and a few years ago was employed as a training team instructor but lost the job after a serious accident caused by drinking. Depression and increased drinking exacerbated the effects of medication to treat the ongoing consequences of his accident. He was arrested for a serious offence of violence and was himself severely injured. Thanks to the probation service he was put in touch with this veterans’ charity following a community rehabilitation order and a suspended prison sentence. Under their auspices, with mentoring and support, he has obtained permanent accommodation and recognised qualifications, reduced his alcohol consumption, drug misuse and self-harm, improved his physical health, increased contact with his children and ex-wife and has avoided reoffending. He has engaged in 969 hours of positive structured activities organised by the charity. In a moving letter he says:
“At present I’m on a Veterans’ Mental Health course and would love to get involved with the next one. I have attended meetings on Civic level supported charity events and am at present laying plans for charity events. All of this has played an important part of me not reoffending, self isolating and drinking and it has also given me reason to look to the future”.
He concludes:
“It is a crying shame that I had to get into trouble to achieve all of this”.
It is also a crying shame that men and women who have served their country in difficult and often dangerous circumstances should fall into a similar state as Mr A, at such great cost to themselves and to society.
By systematically incorporating approaches such as those Mr A has successfully undergone into our criminal justice system, we can do much to reduce the likelihood of such damage, and the veterans’ court concept offers a real prospect of achieving that goal. The Minister expressed sympathy with the idea when I floated it on Second Reading, and Mr Damian Green, the Minister of State for Criminal Justice in the Commons, has agreed to meet my honourable friend Dave Anderson MP and others—I hope to be one of them—in the near future. I hope that the noble Lord’s sympathetic response—I know that he wishes to see this carried forward—will be reflected in a positive response tonight. I hope that we can look forward initially to the establishment of a pilot scheme and subsequently to rolling it out in the interests of society and indeed of the ex-service men and women. Those who serve our country under arms deserve no less. I beg to move.
Lord Ramsbotham
My Lords, in supporting the noble Lord, Lord Beecham, on this I should declare two interests, first as a former Adjutant-General—or personnel director of the Army—and secondly as president of the Veterans in Prison Association. I have been very interested in the attention given to this particular idea; and although I have not been to it, I have had reports of the activities in Buffalo to which the noble Lord, Lord Beecham, referred. I entirely endorse all his suggestions about the north-east being used as a pilot area. I have been in contact with organisations working up there and have been very impressed by the supporting network that is available. It is one of the crucial parts of doing this.
Unfortunately the figures on exactly how many ex-service people are involved in the criminal justice system are slightly distorted by the fact that numbers of them who claim to be members of the services failed even to make the training. While they may make the claim, they actually have no right to do so. I think, and always have, that it is very important to establish that fact right at the start. Some excellent work was done by the Kent police to try to work out exactly how many ex-service people came through the police stations in Kent. They found that it was very important to ask them for their service number and then to follow it up to establish whether in fact they were genuine ex-servicemen or—as it were— pseudo ex-servicemen who did not deserve the same treatment.
In presenting his case, the noble Lord, Lord Beecham, has very rightly focused on the support mechanism that is needed in addition to the courts. There needs to be something equivalent to the diversion scheme which the noble Lord, Lord Bradley, has pioneered for the courts in general. It is very useful to recognise—as the noble Lord, Lord Beecham, has done—that there is a vast network of supporting service charities which act on behalf of the individual servicemen in their long-term and short-term needs. This is something of which account should be taken.
I also commend some other excellent work that has been going on in this country. The Cheshire probation service have been funded by the Royal British Legion to train probation officers to understand the particular needs of ex-servicemen so that they can apply that when deciding exactly how they should be supervised should they be sentenced. What would be very important in establishing these courts—which I entirely recommend—is to make certain that the courts have got a very wide supporting network behind them which should cover things such as mental health and probation. They should also make use of the service charities in whatever action they take with these unfortunate people. I am also very glad that the noble Lord, Lord Beecham, mentioned that many of these people come into the sphere of the criminal justice system comparatively late. The average age of 48 was mentioned. Therefore you are not dealing so much with the young adult as the person who has fallen on hard times through trying to come to terms with civilian life and needs particular help to enable them to re-engage.
Viscount Slim
My Lords, I support very much the speech by the noble Lord, Lord Beecham. I like the way that he has gone into the depth of the problem. I declare that I deal with veterans, from 18 year-olds with one leg to 90 year-olds who have been in various campaigns. I find that middle age is a tricky time for veterans, and it is a big problem.
I do not want to rehearse all the arguments. I believe that the Minister should look kindly on this, and a trial period is what we need. A veteran today gets a fair amount of help when he leaves the Army but the Minister will find, particularly as 25,000 service men and women are in the process of being chucked out of the Army, that the problems are going to increase, and something more will be needed than what is being done at the moment.
I merely state that there is a problem and I do not believe that we are doing enough about it. These veterans’ courts are proven elsewhere; we ought to look at them carefully and trial them. I hope that the Minister understands the problem and is able to do something about it.
Lord Hylton
My Lords, I want to add only that just one court with a proper support network would be very much better than nothing.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have taken part in the debate. I particularly thank the noble Lord, Lord Beecham, for tabling this amendment. I listened carefully to the very poignant story that he told of Mr A’s experiences and how we can build upon that. I also thank the noble Lord, Lord Ramsbotham, who is extremely well placed and well qualified to speak with authority on this subject, with his background in the Armed Forces, as a former Chief Inspector of Prisons and as president of the Veterans in Prison Association.
As my noble friend Lord McNally said at Second Reading, we share the concerns that have been expressed by all noble Lords in this debate and by the House as a whole—indeed, by Parliament as a whole—that ex-service personnel are ending up in the criminal justice system and, even worse, at times ending up in prison.
However, we should not make our genuine concern, which we have heard today, about our ex-service personnel appear unduly alarmist about service in our Armed Forces. To keep this in perspective, there is some evidence that points to the fact that having served in the Armed Forces is a preventative factor in offending—that is, those who serve in the Armed Forces are less likely to offend than the general population. However, many of those ex-service personnel who offend—I fully acknowledge this, and I am sure that this sentiment resonates with everyone in your Lordships’ House—have served their country, and we owe it to them to ensure that we are doing all that we can to support them.
I do not want to go into the specific wording of the amendment because I acknowledge, and I am sure that this was the intention of both noble Lords, that it was designed to highlight this issue so that we could discuss it further. The amendment raises some fundamental and important questions about the different approaches that could be taken. For example, should we be looking at a body designed to divert ex-service personnel before they get to the criminal courts? Should we be considering whether there is a case for ensuring that courts have greater knowledge and awareness in dealing with this group of offenders? Or should we be considering an oversight role, looking at the most effective ways to rehabilitate ex-service personnel? These are questions that we will look at in conjunction with the judiciary, my colleagues in the Ministry of Defence and other government departments.
This is not to suggest that there is nothing going on in regard to veterans. It is true that some ex-service personnel will struggle to adjust to civilian life, but the Armed Forces do much more than other employers in retraining and reskilling staff who are leaving their employ. We are doing more to identify the particular needs of those offenders who end up in prison, including issues arising from their previous service. All prisons should now have a “veteran in custody support officer” to help with and co-ordinate the assessment and support of ex-service personnel offenders.
I should like to take a moment here, and I am sure that noble Lords across the Chamber will want to join me, to praise the excellent work that many voluntary sector organisations do both in prisons and in the community with offenders, notably the Royal British Legion and SSAFA, the Soldiers’, Sailors’ and Airmen’s Families Association.
Important work is therefore going on, and we will be looking at how that may be best developed. I should say that, as part of our plans to improve the rehabilitation of offenders, we will expect providers of probation services to provide flexible and tailored services to offenders, including addressing the particular needs of ex-service personnel. During meetings that we have had around the Bill with the Lord Chancellor, the Secretary of State and indeed with all Peers, I know that this issue was raised by other Peers. The noble Lord, Lord Reid, raised specific examples of what he had seen in Scotland. We have seen examples of this through the PbR pilots. For example, as part of the pilot at HMP Doncaster, ex-service personnel are being matched up with mentors who themselves are from service backgrounds to support their rehabilitation on release from custody.
I cannot say that we will bring back amendments in this Bill to create a new veterans’ court, and in fact legislation for a pilot may not be required. However, to pick up the point made by the noble Viscount, Lord Slim, I fully acknowledge that we need to give this issue particular thought and much more careful consideration, and the department is already looking at it. I invite all noble Lords across the Chamber to work with us in this respect; I would welcome the opportunity. That will enhance and develop our discussions further, and I think that we will benefit a great deal from the expertise in your Lordships’ House.
While we will continue to ensure good practice is continued and developed among providers, we will also consider what further options may be required for the longer term. I noted in particular the comment by the noble Lord, Lord Ramsbotham, when he talked about the establishment of such a court and what surrounds that court—the need for support that goes much wider. It is important that the Government, and indeed the House in its contributions in looking at this matter, take a very holistic approach.
With those reassurances of our continued and passionate shared commitment, as expressed around the House today, to develop support for ex-service personnel, I hope that the noble Lords are able to withdraw their amendment.
Lord Beecham
My Lords, I express a sense of slight disappointment with the Minister’s reply. I am grateful to the noble Lords who have supported the amendment. I rather expected the Government to say that they would at least go forward with a pilot, whether or not legislation was required for that. I would have hoped that they would acknowledge that there would be space in the Bill to allow for the establishment of these courts if legislation were required for that, although maybe it is not—it will be interesting to find out on Report if it would require legislation to establish this system—and for the Government to allow for such an eventuality after a pilot. If the Government are not prepared to give an assurance that a pilot will be mounted, it will be necessary to bring this amendment or something like it back before the House and, perhaps, to test its opinion. Sympathy is welcome but, as we have heard already this afternoon, sometimes it only goes so far.
Lord Ramsbotham
“Secretary of State’s duty
(1) The Secretary of State shall in each year publish a report on the financial and resource costs and benefits of the implementation of this Act.
(2) A report published under subsection (1) shall include, but need not be restricted to, information on the financial costs and benefits associated with—
(a) the supervision of offenders following release from custody,(b) breaches of supervision requirements,(c) changes in arrangements for the provision of probation services,(d) any changes in sentencing practice attributable to the implementation of this Act.(3) Publication under subsection (1) shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the report to the attention of persons engaged in the administration of criminal justice and of the public.”
Lord Ramsbotham
My Lords, this is a probing amendment drafted by the Prison Reform Trust, reflecting a great number of concerns put to it by practitioners. Although there is general approval of and welcome for the intent of the Bill, as has been voiced throughout this Chamber today and on the previous Committee day, there is concern that we do not know a great deal of the detail. Based on experience, those of us who have been involved in the criminal justice system in one way or another are concerned that it is the very lack of detail that it is likely to inhibit the advance of whatever is proposed. The amendment therefore does not aim to put a spanner in the works—far from it. Like many other noble Lords, I want to see the Bill come to fruition. I want something to be done about this terrible reoffending rate, if that indeed is the right term. What is more, I want whatever is introduced to be sustained and not a sort of one-day wonder.
At the heart of a lot of what is being proposed is the introduction of payment by results. I declare an interest as chairman of the All-Party Penal Affairs Group. We have been involved with the drug and alcohol recovery pilots, eight of which are currently running. They went live in April last year and are being run by the NHS. There was a long two-year period before they were introduced and they are being academically evaluated over three years by Manchester University and Birkbeck University. I think that they are very relevant to what is being proposed for the criminal justice system because they involve practitioners in the field. Those monitoring these pilots in the National Health Service have looked at the payback mechanism straw-man proposal for this Bill which, like all the papers we have before us, was published only last month. Although saying that in some respects what is proposed looks promising, they point out that it raises questions, many of which relate to the absence of numbers or qualitative weighting—or, indeed pilots—which does not give one a great deal of confidence in what is alleged.
In addition, they are concerned that there is no mention of the overlap and tension for both users and providers involved with other payment-by-result schemes such as the Work Programme, the NHS alcohol treatment programme, the NHS dual-diagnosis programme, the troubled families programme and indeed, in the case of the Ministry of Justice, the drug and alcohol recovery programme, all of which are connected with the offender rehabilitation programme and some of which could impact on the plans made and payment claimed for an individual who is subject to more than one payment-by-results programme. There does not appear to have been any resolution of that.
Various concerns suggested by other payment-by-result initiatives do not seem to have been fully addressed. For example, there is considerable concern about what is referred to as gaming—the public’s private sector providers playing games with the payment, the assessment or the people they actually put forward for it. To get over that, the National Health Service has put in place a mechanism called the National Drug Treatment Monitoring System, which has treatment outcome profiles and local area assessment and referral services, because it found that unless it does that, there is a great danger of it being taken for a ride, which it cannot afford.
There is also something proposed called the learning-curve discount scheme that nobody seems to know much about because we do not know whether providers are going to be able consistently to reduce costs and/or improve performance and therefore come up with something earning a discount. Also, there is no mention of the significant transition costs of payment by results, which other people have found both in establishing the data management systems for managing the outcomes and the substantial bureaucracy required to manage them. If they are being managed by the current system, which is working flat-out to manage current offenders, I wonder how it will cope with the problems of the payment-by-results schemes. There is also the problem of verification of outcomes which when they are delayed can cause problems with cash flow and therefore the whole payment-based system. I mention those not to be a Jonah but to say that I hope that all these have been taken into account by the Ministry of Justice, which, not having pilots of its own does not have the advantage of practical experience. I hope that it is cashing in on the experience of others to make certain that it does not fall into the same trap.
I admit to two other doubts which I must voice. The first is about costings, and I refer to an answer given by the Minister to the noble Lord, Lord Beecham, on Amendment 7A when he said that,
“competing the community payback contracts in London saw a £25 million saving over four years”.—[Official Report, 5/6/13; col. 1214.]
It is true that the Serco bid undercut the probation service bid by £24 million for a four-year contract. However, that started only last year and that £25 million does not include the costs of running the competition which went on for more than two years and must have been substantial. We also have to consider, when looking at value for money, that the contract has only been running so far for less than a year with three years to go. The probation service is very sceptical that someone such as Serco will put in quite such a low bid next time when recompetition comes up based on actual experience of running the thing. It would regard its bid as being more realistic based on its experience. So the jury is out and I am concerned that too much emphasis is being placed on savings that have been made when a contract has cost less when we have not yet seen the outcomes. The Prison Service has a bad track record on this. I remember complaining once when it excluded central administrative costs from a competition bid with the private sector to run a prison and then claimed that it had won. When the National Audit Office looked at it on a level-playing field it found that the bid had not been put in correctly.
My second doubt concerns time. I refer to the chart on page 34 of the White Paper, which sets out the Government’s timetable. This says that the new probation service, which presumably will include the 77% of privatised elements, will be introduced by autumn next year, after which the new competed services will go live.
If it took two years to compete the London community payback, and if it took two years for the National Health Service to set up its eight pilots for the drug and alcohol recovery schemes, I wonder whether it is realistic to expect that, in the one year between now and then, the Ministry of Justice will be able to complete all the contracts, all the recruiting and all the training of all the people who are needed to carry on with what is proposed while, at the same time, with the same staff, conducting the essential work that has to be done now with offenders. As I say, it is not that I doubt the intent but I question the practicability. I therefore wish that we would be given a more realistic timetable based on actual possibilities rather than the allegations we have been given on page 34.
My last request is that the Minister, who said that he hoped to have the new impact assessment with us by Report, will make certain not only that it is with us by Report, but that it is with us in plenty of time for us to consider it before Report, to make Report a more meaningful exercise.
That is why I am asking the Secretary of State to produce an annual statement of how all this is working out. Certainly, if I were the Secretary of State, I would want such a document on my desk every year anyway. Therefore, rather than asking for something additional, I am asking for something which I presume will be produced to be shared with both Houses so that we can keep abreast of what is going on in this hugely important venture which, in intent, enjoys the support of the whole House. I beg to move.
Lord Beecham
My Lords, the noble Lord has fired a salvo of questions and critiques of the Government’s proposals. It will be interesting to see what defence the Minister can put up to them. The noble Lord has made many telling points, not least the question of the timetable, which looks ridiculously short. The Secretary of State in his previous capacity introduced the markedly unsuccessful Work Programme, which was also rushed through with pretty abysmal results. There must be some danger, particularly if the exercise is rushed, that we will see repetition of that. It occurred to me to think as the noble Lord was talking about this transition that one can envisage staff members being involved in that transition. Does that mean that they take, for example, their caseload with them? Will the cases of those who are being supervised and who will transfer into the payment-by-results system remain with probation or, if the probation officer in question is to be moved over—presumably some of that will happen—will the case go across to the payment-by-results providers? Or will they be excluded? It all seems highly mysterious.
Lord McNally
Deary, deary me. If the best we can do is some anecdote about paint not turning up on time, that must be a sign of some pretty thin paint. Of course, we are at the very start of the Bill’s progress; it is the second day of Committee in its first House. I am perfectly happy to acknowledge that noble Lords can ask all kinds of questions about what is done—“Give me firm answers now”. However, the truth is that we are doing something extremely radical, which the previous Government tried and backed off from. Let nobody doubt that payment by results in this area is exciting.
By the way, I think that the noble Lord, Lord Beecham, should take full responsibility for that paint story. I cannot imagine that the noble Lord, Lord Ponsonby, who is a gentle soul, would attempt such a malicious intervention. It has Beecham fingerprints all over it. Let us be clear on that.
Lord McNally
Yes. I have never suggested that the noble Lord, Lord Ramsbotham, is trying to throw a spanner in the works. I know that he wants this to work as much as I do. One of the values of the parliamentary process is that legitimate questions are asked about how this or that will be done. As the process unfolds, I will do my best to make sure that the House is informed.
We are working at this moment, not in advance of legislation but within the department, on how contracts and competition will work. We are not entirely flying blind on this because, as the noble Lord, Lord Ramsbotham, has said, payment by results has been tried in other parts of Whitehall. Of course we are taking advice and learning from both the successes and the failures of other departments. That is being built into our process. The noble Lord referred to gaming in the NHS experience. That will certainly be looked at. He mentioned transition costs being built in, and verification. We are working and consulting with other departments on these matters. It is very interesting. I can remember the first prospects for privatisation of prisons and a lot of the debates that went on. Even the noble Lord, Lord Ramsbotham, would acknowledge that with the privatisations of prisons lessons and efficiencies have been shown and standards set which have been to the benefit of the prison system as a whole. We anticipate that a similar process will take place in this case.
The Government are very clear that we are trying to carry through quickly a very radical programme, addressing a problem which defeated the previous Government. As earlier debates today have shown, our attempts to address it have widespread support across the House.
We will need to have a good understanding of the support that probation providers give to short-sentenced offenders during licence and supervision. We will need to keep a very close eye on the proportion of offenders breaching supervision, and on how magistrates decide to respond. We will also need to watch very carefully for any changes in sentencing practice.
As I have made clear, it is not the Government’s intention that this Bill will result in changes in sentencing practice, and nothing in the Bill alters the existing custody threshold. However, let me reassure noble Lords that we will be monitoring this and other issues extremely closely. Again, the noble Lord, Lord Ramsbotham, is quite right that there are a lot of other initiatives. This Government are exciting and radical, and are doing things across the piece. Of course, progress we are making in other areas will impact on the criminal justice system, just as our successes will impact on other parts. That is what happens when you have a radical Government.
We will also make sure that we are open and transparent about sharing data and information wherever we can. There are already well established mechanisms for making available many of the types of information that the noble Lord, Lord Ramsbotham, has highlighted in his amendment. On changes in sentencing trends, for example, we publish every quarter a Criminal Justice Statistics bulletin that includes detailed information on sentencing outcomes and trends. This is a national statistics publication, so it is subject to the appropriate checks and safeguards. Any changes in sentencing practice will be clear from this report. In addition, the Sentencing Council has a duty under Section 130 of the Coroners and Justice Act 2009 to publish a report every year on the impact of changes in sentencing practice on prison and probation costs. Any changes to sentencing practice as a result of this Bill will fall under that duty. The independent council, with all its expertise on sentencing, is best placed to carry out that analysis.
Similarly, on breach we already publish licence recall statistics every quarter in the Offender Management Statistics Quarterly Bulletin. Again, that is a national statistics publication. We want to make sure that, in the future, that includes recalls of prisoners released from sentences of less than 12 months, and includes committals to custody for those proven to have breached a supervision requirement. Likewise, we publish proven reoffending rates every quarter, broken down by type and length of sentence. That is also a national statistics publication.
I hope this makes it clear that we are not starting from scratch. I also take pride in the fact that this has been one of the most proactive Governments in putting out their statistics and information, allowing various parts of the Government to be checked on performance. The Government have worked hard over the past three years to improve the transparency of the criminal justice system, and we would look to make available much of the information that Amendment 34 details through the existing mechanisms we have.
The Secretary of State is already subject to a duty to publish information of this sort. As I suspect the noble Lord is aware, given that his amendment follows some of its language very closely, Section 95 of the Criminal Justice Act 1991 requires the Secretary of State every year to publish such information as he considers expedient on a range of topics, including information that allows those working in the justice system to become aware of the financial implications of their decisions and information that allows those working in the justice system to understand the effectiveness of different sentences in preventing reoffending.
We already consider it expedient to publish not just annually, but quarterly, much of the information that Amendment 34 mentions. That will continue to happen if the provisions of the Bill receive the agreement of both Houses. Therefore, while I understand, welcome, and agree with the intentions of the noble Lord in tabling this amendment, I hope that what I have said reassures him that the Government are committed to understanding and sharing the impacts of this Bill and to being as transparent as possible in delivering it forward.
In doing so, I remind noble Lords that costs for extending supervision will ultimately be dependent on the outcome of competing offender services in the community. If we were to give figures at this stage, it would put at risk our ability to agree value-for-money contracts with providers. However, I hope that my commitment last week to take away the impact assessment for the Bill and to consider how we could expand it will provide some additional assurance. Work is under way to revise the impact assessment as I speak, and I hope to be able to bring back a revised version soon. I know what has been said about the value of that on Report. In the light of these assurances I hope the noble Lord will feel able to withdraw his amendment.
Lord Hylton
My Lords, will the Minister confirm that the Treasury has set a fixed sum for the transition to the rehabilitation of short-term offenders and for the changes to the probation service? If so, how big is that sum, and over what period?
Lord McNally
One of the things I have learnt in three years is that when a noble Lord asks me a question like that, I promise to get advice and write to him for the benefit of the Committee. I am quite sure that on almost every aspect of life the Treasury has fixed sums in mind, but I will check on that and report back to him.
Lord Ramsbotham
My Lords, I am very grateful to the Minister for that reply, and for the dialogue we have had about the various issues that were raised. The noble Lord has quite rightly appreciated the deep interest that all Members of this House have in this issue. It is too important to be let go by default. We have a certain amount of expertise, as well as interest, in this House, which we are extremely anxious to deploy if we possibly can. Therefore I am very happy at this stage to withdraw the amendment, but I would like to consider the content of the impact assessment before deciding what action I take on Report. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, the noble Lord, Lord McNally, provokes a vision in my mind. I see him as a sort of parliamentary Caliban, proclaiming constantly: “Oh brave new world, that has such legislation in it”. I cannot say that he is altogether persuasive in the claims that he makes for this legislation, well motivated though it is, let alone the rest of his Government’s exciting and radical agenda.
In these amendments I look at two exciting and radical parts of the Bill. Amendment 35 addresses the provision in Clause 18 that empowers the Secretary of State to make an order that may,
“make different provision for different purposes, and … amend, repeal or revoke legislation”.
These are probing amendments only, but it would be helpful to know what the Minister envisages by, to quote the preceding subsection,
“consequential, supplementary or incidental provisions in relation to any provision of this Act”.
Can he exemplify the sort of thing that might be covered by the order-making power conferred by Clause 18(2)?
Amendment 36 relates to Clause 19, the substance of which goes even further in giving the Secretary of State power to,
“make other transitional, transitory or saving provision in connection with the coming into force of any provision of this Act”.
Such an order may,
“make different provision for different purposes”,
and so on, and,
“An order … is to be made by statutory instrument”.
Would that require the affirmative procedure or only the negative? The power is potentially so wide, as is the power in the previous clause, that it should require the affirmative procedure rather than merely the negative procedure. Will the noble Lord elucidate the position?
Lord McNally
The noble Lord beat me. I have been racking my brains for a suitable Shakespearean quote to come back at him. I suppose we could say that this is a “Government of wonders”. I am reminded of the late Lord George Brown, who, when he was Economics Minister, stood up at the Dispatch Box, banged it and said “This Government are running the economy in a way that it has never been run before”, and was then surprised when the Opposition cheered him to the echo.
In this last group of amendments, we turn to the provisions on consequential and transitional arrangements. The provisions in Clauses 18 and 19 are mainly technical, and are also fairly standard constructions, which can be seen, for example, in the Criminal Justice Act 2003. The noble Lord, Lord Beecham, seems to be saying that these amendments are designed to ensure that Parliament has a say before order-making changes are made.
Clause 18 allows the Secretary of State to make provision that is consequential, supplementary or incidental to the provisions of the Act by an order that is subject to the negative procedure. This clause mainly amends other statutory schemes, some of which are complicated and technical in nature. It is therefore eminently sensible for there to be a power to make the consequential or other changes needed to ensure those provisions work well with the provisions of this Act.
Those changes should be subject to the negative procedure where possible. Clause 18(6) makes it clear that where an order under Clause 18 is made that amends another Act, it is subject to the affirmative procedure. Amendment 35 would remove Clause 18(2), which makes it clear what the power can be used for. The power itself is conferred by subsection (1), so the amendment makes it unclear what the power may be used for: it would not remove the power. There will be an opportunity to scrutinise the technical changes made by any order made under Clause 18. I do not believe that these have to be affirmative orders, and where the order is not subject to the affirmative procedure it will be subject to the negative procedure.
Amendment 36 is more specific in that it would make any order made under Clause 19 subject to the affirmative procedure. Clause 19 makes arrangements for transitional provisions and introduces Schedule 7, which sets out in what circumstances the changes made by the Bill apply. For example, it sets out how the new supervision changes apply to different sentences in different circumstances. The power to make transitional, transitory or saving provisions can be used only if those provisions are related to a commencement order. Under this Act, commencement orders are, as is usual, not subject to a parliamentary procedure. It would therefore be odd for the power to include transitional, transitory or saving provisions on commencement to be subject to the affirmative procedure.
Clauses 18 and 19 are needed to implement primary legislation flexibly, and they are often technically complicated. I do not think that noble Lords would particularly welcome a detailed debate on affirmative orders. I do not know: I could think of one noble Baroness who would relish a detailed debate on affirmative orders. Oh, she has gone. We teased the noble Baroness, Lady Hamwee, earlier. I am not convinced that such a debate is a good use of your Lordships’ time, or is what this amendment actually intends.
In asking the noble Lord to consider withdrawing these amendments, I take the opportunity to say that this has been very useful and productive Committee consideration of this Bill. We will return to detailed points on Report and we have already had a few Mafia-like warnings—you know where we live—that there will be consequences if we do not respond. However, I have appreciated the general support on all sides of the House for what we are trying to do in tackling the problem of reoffending, which has proved very difficult for successive Administrations. We claim no genius in our solutions, but we are genuinely trying to find both the resources and the flexibility to tackle this problem. The contribution of this House to getting it right is enormously appreciated.
Lord Beecham
I am grateful to the noble Lord for his reply and his essentially good-humoured approach for most of the time we have been discussing the Bill. I made it clear at the outset that these were probing amendments only, so he perhaps went a little further than he needed to in responding. Nevertheless, I am grateful. I echo his words about the proceedings having been useful. How productive they have been will very much depend on the Government’s response on Report. I hope it will be a little more positive than he has indicated, or has been allowed to indicate, so far. I beg leave to withdraw the amendment.
International Development: Budget
(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Empey
To ask Her Majesty’s Government whether they have plans to transfer a portion of the international development budget to the budget of the Ministry of Defence.
Lord Ahmad of Wimbledon
My Lords, because the noble Lord’s Question for Short Debate will be taken as last business, the time limit for it will become 90 minutes rather than 60. Therefore, speeches should be limited to seven minutes, except for those of the noble Lord, Lord Empey, and the Minister, for which the limits will remain 10 and 12 minutes respectively.
Lord Empey
My Lords, it is often said of politicians that they should not ask a question until they know the answer. However, I can truly say that I do not know the answer to the question that I will ask this evening, and that my motive in securing this debate is to seek answers and clarification.
There is no doubt that large numbers of our fellow human beings live in terrible conditions that we can barely imagine, and which our community finds appalling. Whether it is hunger, slavery, exploitation and trafficking, disease, war or natural disasters, there is virtually no end to the misery suffered by millions of people, with the young and old as the principal victims.
There is a long tradition in this country of being willing to help others, both financially and in other ways. One has only to look at the money that is raised annually by appeals such as Children in Need, and at the response to international disasters, when the British people give generously. There is a well established tradition of volunteering, with many young people, in particular, willing and anxious to spend some of their lives in the service of others. Sadly, on a number of occasions this has put those young people in personal jeopardy, and some have lost their lives. My own region of Northern Ireland always punches above its weight in such enterprises, and this creates a great sense of pride in our fellow citizens.
In recent years, there has been growth in the amount of taxpayers’ money that has gone to international development. In the Budget 2013 document of March this year, the figures were stark. Resource DEL for the Department for International Development will rise from £6.1 billion in 2012-2013 to £8.8 billion in 2013-14. When capital DEL is added, the total figure will increase from £7.8 billion in 2012-13 to £10.7 billion in 2013-14—an increase of 37%. No other department of state enjoys such largesse in this time of austerity. By comparison, the Ministry of Defence’s total resource and capital DEL figures show a more modest increase of 5% due to increased capital spending.
This Government have set out on a number of occasions their ambition to spend 0.7% of GDP on international aid. In recent days, the Prime Minister has, in his capacity as chairman of the G8, chaired a conference designed to raise money for many starving people. However, earlier this year, in February, David Cameron alluded to the possibility that funds currently allocated to the Department for International Development could be reallocated to the defence budget in order to provide security and stability in regions where this was necessary to distribute aid safely.
There is already co-operation between the Ministry of Defence, the Department for International Development and the Foreign and Commonwealth Office, which is essential to ensure that UK policy is properly co-ordinated. Military campaigns are often accompanied by humanitarian projects, and the foreign policy objectives of Her Majesty’s Government can often be advanced by such spending, as the briefing pack for the debate demonstrates. The flurry of parliamentary Questions, both in your Lordships’ House and in the other place, suggests that I am not alone in seeking clarification of what is proposed.
The OECD and the International Development Act 2002 define what is regarded as legitimate aid spending. This could be in conflict with the MoD’s understandable concern about recovering costs and relieving pressure on its overstretched budget. I do not have a problem with that. The work of the Department for International Development, the Ministry of Defence and the Foreign and Commonwealth Office should be part of a seamless process designed to help those in greatest need. Without a proper framework of security, this is often neither safe nor possible. I regret, for instance, the trite and sarcastic statement by Max Lawson, Oxfam’s head of policy, that what is needed is spending,
“on hospitals and not helicopter gunships”.
This makes no positive contribution to the very difficult balances that Ministers have to strike.
Given all this, what exactly was the import of the Prime Minister’s intervention in February? If nothing has changed, why was his speech necessary? If something is changing—and maybe it needs to—why are Ministers being coy about it? Given our current financial circumstances, and considering that many people in the country simply do not believe that all their hard-earned taxes always get to the people who need them, but instead, in a minority of cases, go to corrupt officials, gangsters and despotic regimes, it is necessary for the Minister to tell the House exactly why such an intervention was necessary, and explain what exactly is happening to the very large international development budget.
I have no doubt that the Prime Minister and other Ministers take great pride in the fact that the United Kingdom is taking the lead in a number of important projects throughout the world. Undoubtedly it is something in which all people in this country take pride. It is also true that our defence forces are under great strain and pressure. However, there is in some cases an inextricable link between having support from defence forces on the one hand and allowing them to be co-ordinated with staff from the Department for International Development and the Foreign and Commonwealth Office. I seek clarification on why the Prime Minister said what he said if there was no change taking place—and, if there was a change, perhaps the House may have an adequate explanation so that a judgment can be made.
Lord Bates
My Lords, it is a privilege to follow the noble Lord, Lord Empey, and I pay tribute to him for securing this timely debate. Noble Lords on all sides of the House, irrespective of their point of view, will look forward to hearing the answers to the questions he posed, which should be in the public domain.
Essentially, he reminded us that there is a choice about how we spend our budget, and whether we devote it to overseas development assistance or whether we spend it on military interventions. On that subject, I will underline some important facts that are sometimes overlooked in the current debate—understandably, because these are incredibly tough fiscal times for the country and times of great hardship at home. Therefore, people are asking questions about how we are spending our money overseas. For every £1 we pay in taxes, just over 1p is spent on aid. For every £1 we spend on aid, we spend £6 on defence. Clearly we need to look at that situation and keep it constantly under review. I was impressed by some figures that came out of the weekend summit to which the noble Lord referred—and it is wonderful to see Northern Ireland in the spotlight this week, in the lead-up to the G8 summit in Lough Erne, Enniskillen. Therefore it is timely that we should focus on that in particular.
Save the Children sent me some figures which pointed out that, in 1990, 12 million children under the age of five died from preventable diseases. They then showed that, in 2011, that figure had fallen dramatically to 6.9 million. Aid has played a crucial part in that; so has trade. The noble Lord, Lord Empey, was a distinguished Minister of Enterprise, Trade and Investment in Northern Ireland and knows the importance of trade in lifting people out of poverty. None the less, 5.1 million fewer deaths of under-fives per year is an incredible return that the British people and others are getting on their investment in the poorest in the world.
It is always very difficult when these things happen because, when we see need around the world, a hue and cry goes up that “something must be done”. We are finding this at the moment in Syria. There is no doubt that, if you are in a ministerial office—at the Foreign Office, in the Ministry of Defence or in No. 10—the pressure to show immediate responses is immense, and military action is an immediate response. It has impact, it is visual and it shows a degree of leadership. To invest in aid, training people in how to develop crops, drilling wells, improving sanitation and educating the child takes longer. In a sense, they are less immediate, but the long-term return is vastly more.
We need to look at this very carefully and I read the Prime Minister’s speech about it with care. It could have been interpreted as leading to some potential change in the way that we allocate aid. Yet, the Prime Minister has nailed his colours to the mast on this to a greater extent than probably any leader in recent times. He has been inextricably associated with arguing the case for aid, not least last weekend. Within the Conservative Party, which is part of the coalition, he vigorously makes the point about the value of our aid spend in the world. That is very significant. We are just reaching the point of achieving our goal of 0.7%. We are seeing the returns: 5.1 million fewer lives lost. We are being told by the UN that the eradication of poverty for under-fives by 2030 is a real possibility, and that a further 1.7 million lives per year could therefore be saved. When we are on the brink of that incredible breakthrough, it would be unthinkable to look at blurring the edges between two very distinct types of spend. They are two very necessary types of spend in their correct context but we must not blur the edges. There are international agreements as to what overseas development assistance means and they come together in the Conflict Pool, the work of which I applaud. It has been a great innovation in bringing together the Ministry of Defence, DfID and the Foreign and Commonwealth Office, getting them to work together in control of a single budget to tackle prevention, rather than by intervention.
When the Prime Minister launched this, he said, in another place, that,
“we must get better at treating the causes of instability, not just dealing with the consequences. When we fail to prevent conflict and have to resort to military intervention, the costs are always far higher”.—[Official Report, Commons, 19/10/10; col. 798.]
We know the impact of that through our intervention in Iraq and our continued presence in Afghanistan. That intervention is critically important. We know that more than 1.5 billion people live in fragile or conflict-affected states and it is no surprise that none of these has achieved a single millennium development goal. There is a link there.
I understand the argument that you need the military solution to create the security on the ground to allow trade, education and assistance with governance to develop, but I profoundly disagree with it. When people are without income, without hope, they have nothing to lose or to live for and that is then a catalyst for violence, rather than something which abates it. We need to remember that as we consider all the options open to us.
Lord Judd
My Lords, it is always good to follow the noble Lord, Lord Bates, because he brings judgment, wisdom and a strong humanitarian commitment in so much that he contributes to debates on issues of this kind. He argues his case particularly convincingly. I hope that my words will underline the significance of what he has said.
I want to congratulate the noble Lord, Lord Empey, on having introduced this debate. It is incredibly important and not something to be swept to one side after the remarks by the Prime Minister, so I hope we can have clarification of what exactly he meant.
It is quite a long time since I was in government. My first job was in defence and, after two years there, which I enjoyed greatly and found very challenging, the Prime Minister asked me to move to overseas development where I became the Minister for a short while, until Tony Crosland died and I moved to the Foreign Office. When I made the change, quite a lot of my friends asked me, wasn’t this an incredible change to make from defence to overseas development? I looked at them straight in the eye, because I believed it, and said, “Not at all. Both are about human security and well-being”. During my years in defence, I was always impressed by the number of senior officers, civil servants and others, who used to say in discussion, “Of course, we’ve lost if war breaks out. Our job is to prevent war and to ensure that peace can prevail”. Of course, development is ensuring that peace is not just the absence of war, but it is the ability of people to live full lives and to develop their potential.
I strongly believe that this is a time of so many challenges, including hunger and malnutrition—which is particularly sinister with its long-term effects, not least on future productivity—of climate change and of infant mortality still, although we must all take heart from the great progress to which the noble Lord, Lord Bates, referred. However, this is not a time to start raiding the aid budget. There may be very real arguments about how we do it better, get better value for money and prioritise better. Some of that has begun with the examination of programmes in India and South Africa, for example. These are big, important arguments but it certainly cannot be said that there are still not demands which far outstrip what we are even now able to make available.
The British people should take great pride that we are setting examples to the world in our commitment to overseas aid and development. At a time of low morale in Britain about so many things, this is something about which we can get excited—the positive battle for humanity, and the well-being of people and the children who are being born, or who should be born today but still die before they have a chance to enjoy life. It is very significant that we can say to the world, “Don’t do as we say but follow our example because this is a challenge that we are determined to meet”. I make no bones about it: I congratulate the Government unreservedly on having honoured the pledge of allocating 0.7% of GNP to aid. There will be arguments about priorities and techniques, but having kept that promise and that determination is something in which the British people should take pride. That is not to say that the example should not be followed in the battle for social justice and against poverty, deprivation and inadequacy in our health service in our own country, but at least in our relationships with the world we can hold our head high. It is an example of what we should be doing in our own society, if I may put it that way.
There will always be an overlap between overseas development and defence—that is clear. Certainly, humanitarian assistance, let alone long-term development, cannot take place if there is insecurity and instability. Therefore, in some situations it is necessary for defence forces and aid operations to work hand in glove. However, there are tensions—for example, in Afghanistan. The Army liberates an area and wants to put things in quickly which give the people a stake in the liberation of their territory before the Taliban moves back. Overseas development workers say, “Hang on a moment. It’s not just a quick fix. If we are to put a school or a hospital in, it has to be sustainable because if we have a quick fix the whole thing will collapse and we are likely to lose everything”. Therefore, there are real tensions between the disciplines of long-term, sustainable development and the immediate needs of the Armed Forces. The challenge is how we bring those two aims together in a useful and sensible way. I always think it is very exciting when the military can feel that on occasions it is contributing positively to human well-being by ensuring that supplies get through and that goods are delivered. That is something which many people in all three services of the military enjoy and value. However, these two aims are not the same tasks and how you marry them together will always pose a very difficult challenge, but one with which I think we should grapple.
In conclusion, we still need to give far more attention to the issues of conflict resolution and conflict prevention, although we are giving them much more attention than we used to. The resources to do that should come from the aid budget although the military has a contribution to make. I hope that in all the Government’s considerations those issues remain priorities.
Lord Chidgey
My Lords, I, too, congratulate the noble Lord, Lord Empey, on securing this debate, on his thoughtful contribution and on the concise way in which he presented it, which is an example to us all. I will certainly try to follow that example.
It is a delight and a privilege to follow my old friend, the noble Lord, Lord Judd, who was first elected as an MP in Portsmouth many years ago when I was a young student at Portsmouth Polytechnic. I am afraid that he did not persuade me to vote for him. Nevertheless, it is always a pleasure to hear him extolling with such oratorical skill his well-known absolute commitment to international aid and development. I shall try to follow him with a few precise words of my own.
For some months now, there has been a mounting campaign within the defence community for the MoD to be given an ability to draw upon elements of Britain’s aid and development budget. The attempt to access this ring-fenced budget as part of the comprehensive spending review has thrown up suggestions that DfID should, for example, pay for flights on RAF transport aircraft, in particular for military helicopters used to carry civilians as well as soldiers, by prepaying a guaranteed number of flights for each type of aircraft in regular use by DfID. There have also been suggestions that DfID should pay for some naval patrols and protective equipment required by civilian staff. The Royal Navy’s Atlantic Patrol Task is a case in point. Tasked with protecting our interests in the Caribbean, the APT takes on humanitarian aid during the hurricane season, together with assisting with counternarcotics and anti-terrorism operations.
There has been a push from the MoD to redefine more of its work as official development assistance, not surprisingly given the way in which the Prime Minister’s remarks about establishing effective links between defence and development have been largely, if not blatantly, misinterpreted in some quarters. They were spun to mean that more ODA should be spent on defence, increasing the momentum being created behind the campaign to that effect. However, the fact of the matter is that ODA can be spent by the military only on very specific activities due to strict guidelines from the OECD and the United Kingdom’s own International Development Act 2002, to which the noble Lord, Lord Empey, referred.
Apparently, discussions between the MoD and DfID are ongoing, so perhaps in her reply the Minister could tell us whether an options paper has yet been put to the National Security Council and, if so, when its response is expected. The Government have made it clear that they would like to see more of the aid budget diverted to defence by building up the Conflict Pool already used by DfID and the MoD.
If we can help states riven by conflict and war, and help to deliver security and provide stability, we also provide the base on which all development can proceed. The Government’s commitment to investing greater resources in preventing violent conflict before it breaks out is widely welcomed. The use of the Conflict Pool through the Building Stability Overseas strategy is widely seen as a step in the right direction.
The Independent Commission for Aid Impact’s recent report, Evaluation of the Inter-Departmental Conflict Pool, recognised that it has proved effective at identifying and supporting worthwhile conflict-prevention initiatives and has delivered some useful, if localised, results. It goes on to say that the Conflict Pool functions well as a responsive grant-making instrument for supporting small-scale peacebuilding activities by local parties in conflict-affected countries.
The ICAI report identifies a number of ways in which the Conflict Pool can be improved through greater attention to how the cross-departmental approach should work in practice, identifying more clearly how Conflict Pool spending can achieve impacts on the scale required, adopting a more conflict-sensitive approach, and improving monitoring and evaluation systems. I would be grateful if the Minister could inform the House of the actions that the Government have taken, and are taking, in this regard.
Aid is not the only mechanism that the UK can use to promote peace and support stability and development. According to Saferworld, there are a number of ways in which the defence community can contribute to conflict-prevention activities—elements such as security and justice sector reform, small arms counterproliferation and monitoring arms transfer control arrangements. Some may count as ODA while others may not. The MoD mentions the BSOS in its Defence Engagement Strategy paper but does not set out how it intends to contribute to upstream conflict prevention. This gives an impression of a lack of commitment to the BSOS and belies the MoD’s responsibility to ensure that its approach in fragile states works towards the vision of stability outlined in the BSOS. Will the Minister clarify how the MoD is working to fulfil its commitments under the BSOS, which sets out the UK’s approach to addressing conflict overseas?
Finally, I echo the words of Bill Gates who, with the Gates foundation, has set new heights in philanthropy in aid and development. When he opened DfID’s new offices in Whitehall last week—in fact, we should not really call them new; that is a misnomer as they are a refurbished conversion that will hopefully do the job—he said that the UK should take great pride in the compassion and generosity of its people and its commitment. Mostly, it should take great pride in its ability to deliver effective international aid on a scale that makes the UK a world leader, and the Gates foundation its preferred partner.
The Earl of Listowel
My Lords, I, too, am most grateful to my noble friend Lord Empey for tabling this important and timely debate. We always have to consider the brave men and women of our armed services and be sure to leave no stone unturned in ensuring our absolute commitment to their success and to the protection of the nation.
However, I seek reassurance from the Minister with regard to switching funding from development towards defence because, as the noble Lord, Lord Bates, made crystal clear, we are talking about the lives of millions of children. Even a small reduction in funding will be measurable in children’s lives. We as a nation are making a huge difference through our commitment and the example that we are setting to the international community. We are taking a leadership role in international development by saving children’s and adults’ lives, and showing other nations the way in doing so. Perhaps it is arguable that by taking these steps we are also contributing to an increase in the reduction in population growth across the globe. As families are supported as women receive education, birth rates drop, so population growth drops. It is arguable that that might contribute to long-term stability and a safer and more secure global environment.
I should declare an interest. I was funded to visit Angola during the civil war there 12 or 15 years ago. I have visited Angola on a couple of occasions subsequently, funded by Save the Children and Tearfund. I recall meeting AIDS patients in Luanda who were utterly helpless because there was no treatment that they could afford. They were living desperate lives. I also remember visiting an area for internally displaced people and seeing a group of men and a young woman who was with them talking about condom use and how important it was in preventing the spread of AIDS. I remember seeing street children who were living in the sewers of the city. They came up from there to make a life for themselves. I visited a school sponsored by an NGO that provided street children with an education and opportunities for employment. I visited a project funded by DevelopmentAid where young men were building their own homes. I visited a maternity unit, which sadly had no or very few incubators for babies. The main problem was that the roads were in such poor condition that mothers found it difficult to get timely help during their pregnancies.
The difference which the British people make internationally by their investment in educating women, reducing levels of poverty and ensuring that children get adequate nutrition is huge. The noble Lord, Lord Judd, drew attention to the long-term impact of malnutrition in early life. By making a difference in these areas, we are also contributing to lower birth rates and a reduction in the world population.
This is the right thing to do because we are saving children’s lives in Africa and across the world. It might also be argued that what we are doing is prudent because we are introducing more stability by reducing population growth by ensuring that women are educated and taking that step forward. I join in the tributes made across the House to the coalition Government for their commitment of 0.7% GDP to international development, and I look forward to what I hope will be some reassurance from the Minister that there will be no trans-switching of funding from international development to defence. Both are crucial and need to be treated independently.
The Lord Bishop of Chester
My Lords, I join those thanking the noble Lord, Lord Empey, for introducing this debate. It is very timely and perhaps gives us an opportunity for some clearing of the air after the Prime Minister’s recent comments and the reactions, or overreactions, in some cases, to them.
Let me emphasise from these Benches our complete support for the Government’s overall allocation to the aid budget. I believe that history will give a very favourable judgment on this country’s decision to maintain its increasing level of commitment at such a challenging economic time. Our world seems ever increasingly to be characterised by growing divides between wealth and poverty, whether between individuals in a given country or between countries themselves. I sometimes think that there are not many issues on which the Lords spiritual are in total agreement, but this is definitely one of them. At least, I believe that to be the case, but my right reverend friend the Bishop of Derby has yet to speak.
Aid should be directed to alleviate poverty, but that poses the question: what is poverty in our world today? When thinking about poverty we should, of course, take its obvious meaning which tends to come first to us: it is a lack of money and material resources. But poverty is not just a lack of material resources; it can also be poor health, which can be psychological as well as spiritual. Poverty can be not living in a democracy in which individuals are valued. Much poverty in its broader sense is caused by wars or other social upheavals, just as the greatest single source of poverty in this country is arguably family breakdown. The best way to address poverty in our country might well be to have a co-ordinated, cross-departmental strategy to reduce family breakdown, in as much as the Government can influence such major social trends.
The same applies to development aid overseas. Above all, it needs a joined-up, cross-departmental strategy, and in as much as this is what the Prime Minister was advocating in his recent remarks, I have no problem with them. I also have no fundamental objection to our aid programmes being integrated somewhat with our broader national interests or security strategy. There has been a tendency in the past for the development programme to be almost on its own plane, apart from other aspects of government policy. But it is distinct, as has been rightly said by the noble Earl, Lord Listowel. It always seems to me to be part of the overall programme of what we are trying to do as a country. Surely we are learning the hard way, as has been mentioned, that soft power in all its guises is often more lastingly effective than hard power. Indeed, there seem to be many conflicts which have no purely military solution, as indeed is the case, it appears, in Syria.
In relation to the Ministry of Defence, for example, I can see a strong case for offering assistance with mine clearance, or rehabilitating former soldiers into society after a conflict ends. We heard something about that in the previous debate about the Offender Rehabilitation Bill: there is a particular problem with ex-servicemen who find life difficult some years later. No doubt a whole range of activities, which might be regarded as aspects of peacekeeping and peacemaking, should involve the Ministry of Defence along with other departments. I see no reason why that should not be the case. That should involve not only other departments of government, but voluntary agencies—let us remember those too, including faith communities.
In Africa, in particular, there is a major problem of preventing aid money being swept up into a culture of corruption. Often the safest way to distribute money in those countries is through the faith communities. My most reverend friend the Archbishop of Canterbury cannot be here today, but this is a particular concern of his, as he has had a major interaction with Africa over the years, and indeed looking at his blog, as I do every night before I go to bed, there is an instance of the Episcopal Church, the Anglican Church in Sudan using money from the overseas development budget— £3 million or £4 million —to train thousands of teachers in a country where only about 1% of the young women complete secondary education. Again, that is a really important example of collaboration outside the immediate structures of government, but that should be built on collaboration within government.
I believe that this country has a proud record on overseas development. I simply want the Minister to reassure me that that will long remain the case.
Lord McConnell of Glenscorrodale
My Lords, I, too, thank the noble Lord, Lord Empey, for raising this subject this evening and for giving us an opportunity not just to seek clarification but to express what is clearly a strongly held view among most Members of your Lordships’ House. I refer to the inference that the expenditure pattern on development might change to assist the Ministry of Defence in what may be perceived as current difficulties with its budget, and the real strategy at the heart of what successive Governments have been trying to achieve, which was damaged by that intervention, or at least the public description of it.
I associate myself wholeheartedly with the content of the speech of the noble Lord, Lord Bates, and his analysis of the importance of this issue and of conflict in fragile states. I also wholeheartedly endorse the speech of the right reverend Prelate the Bishop of Chester.
The Government have done remarkably well on the agenda for international development over these past three years. Many who were, perhaps in advance of the 2010 election, slightly suspicious of the Government’s commitment to international development, have been proven wrong. The consistency with which they have applied the comprehensive approach initially begun by the previous Government, by improving and expanding upon some of the procedures that were put in place, such as the Building Stability Overseas strategy, the extension of the Conflict Pool following its review, the establishment of a National Security Council, and the implementation this year of the 0.7% of gross national income of our national budget for international development, have all been important steps on the right road.
It is not just in their individual actions that the Government have been right. Having watched this closely and been pleased at what has happened over the past three years, even I was surprised to see the Chancellor on television at the time that this issue was raised, presumably by one of the Prime Minister’s aides, back in February or March, whenever it was first in the news. The Chancellor said that it was in this area of our expenditure, where we commit to an international agreement and we implement that commitment, that we give ourselves influence around the world in ways that are almost impossible through other means. To hear that coming now on a cross-party basis from these Houses of Parliament should give us all great pride.
In that context it was with dismay that I watched the debate on this issue emerge in the early months of this year. The suggestion that money could be transferred from international development to help out with the defence budget was wrong on four grounds.
First, it is against the rules. So it was a silly thing to say in the first place—it cannot be done. The idea that the international development budget could be used for non-international development purposes was never going to have any traction, and therefore to suggest that for public consumption was frankly silly. Secondly, and allied to that, it is dangerous. It puts in danger those in the field who are trying to work in the most difficult of countries and situations—those states referred to by the noble Lord, Lord Bates. It therefore makes the lives of those who take on the most difficult challenges in our world today more difficult.
Thirdly, such a suggestion reverses the strategy begun by the previous Government, built upon by this Government, on the comprehensive approach that says that, in today’s 21st-century modern world, defence, development and foreign relations cannot exist independently of each other. They will be successful only if they work together.
Fourthly, the suggestion reduces our influence internationally. Not only has the UK been implementing this strategy at home for most of the last decade, it has been leading the international strategy on this debate as well. When I was the previous Prime Minister’s special representative for peacebuilding between 2008 and 2010, I had the fascinating privilege to visit United Nations missions around the world, with both peacebuilding and peacekeeping missions. People consistently said to me—particularly local people, or those involved in national government in countries around the world where these missions exist—that the lack of co-ordination between defence, development, peacebuilding and peacekeeping, between a national strategy and the international intervention of agencies and donors, and the lack of a comprehensive strategy were the biggest blocks to building peace and ensuring that development is able to take place effectively.
If we have learnt that lesson anywhere over the past decade, we have learnt it in Somalia, where we have seen remarkable progress over the past two or three years. We should never be complacent about the situation in Somalia and the Horn of Africa, certainly not in the short or medium term. The European Union, the United Nations, the World Bank, individual donors, those involved in development and those involved in military training and expertise are all coming together in one strategy, and making a difference in trying to build a new democratic parliament and some opportunity for Somalia to build its way out of the horrors of the past 20 or 30 years. To reverse that strategy now and to play games with this issue is a dangerous thing to do.
I hope that there will be further clarification. The Minister has clarified this matter in your Lordships’ House before, but I hope tonight she will be able to do so once more. I also hope that in seeking this clarification we will say clearly to the Government that it is essential that they not only implement this strategy here in the UK, but continue to lead on it internationally, and ensure that the United Nations, the World Bank and others work together in a truly comprehensive approach across every continent.
Baroness Tonge
My Lords, I congratulate the noble Lord, Lord Empey, on securing this debate and bringing this topic to the attention of the House. It has triggered a memory for me. As a new Member of Parliament way back in 1997, I can recall very well that a new defence review was being undertaken. I attended an interesting discussion between Ministers past and present about the concept of defence diplomacy. To my innocent ears, it sounded like a new dawn. One of the MoD’s eight missions was to,
“dispel hostility, build and maintain trust, and assist in the development of democratically controlled armed forces”.
The defence budget would fund these activities; it was brilliant. The new dawn soon faded, however, as young and not so young Ministers got the smell of cordite in their nostrils, or whatever it is that makes men—it is mainly men, I am afraid—go to war in order to try to solve the world’s problems. The last Government certainly loved their military adventures.
I have not heard much about defence diplomacy since then, but I am extremely pleased and almost proud, although I do not like that word, that our coalition Government have committed to spend 0.7% of GNI on international development, 30% of which will be spent on fragile states, which we all know are the poorest in the world and unlikely to achieve the millennium development goals. Conflict produces poverty and poverty causes violence and war; we all know that cycle. I appreciate that because of this, there needs to be co-operation between the Foreign Office, the Ministry of Defence and the Department for International Development.
I am extremely concerned, however, at the suggestion that by some sleight of hand the protected DfID budget will be used to shore up the unprotected MoD budget. What a fall from grace that would be. How cynical it appears, especially if the money is used directly or indirectly for things like helicopter gunships. That would do great harm to our reputation for international development throughout the world. Development and military activity, even defence diplomacy if it is still practised, however well intentioned, must be seen as separate activities. Journalists have reported from Afghanistan that the Taliban has attacked aid workers because they were thought to be collaborating with western forces. NGOs—Christian Aid in particular —have expressed their fears that aid workers’ lives will be in danger in fragile situations if they are thought to be colluding with the military. It would be disastrous.
The best way to bring about peace and stability is through poverty reduction. Young, poor and under- employed people are used as fuel for conflict. We need to concentrate on giving them better lives by educating them, especially the girls, and improving their health and prospects.
As chair of the All Party Parliamentary Group on Population Development and Reproductive Health, I must add that around 350,000 girls and women die every year in pregnancy and childbirth. The majority of them live in fragile and conflict-wracked states with no access to family planning or safe abortion, obstetric care, or even skilled birth attendants. I must also remind the House that there is an enormous unmet need for voluntary family planning around the world. The consequences of not providing family planning resources are unsustainable population levels, which lead to conflict over the world’s diminishing resources. It is a very important link. While on the subject of women and girls, the Minister would expect me to say that we must not allow Department for International Development money for safe abortion after rape in armed conflict to be diverted away from this very necessary service because of the aid policies of other countries such as the USA.
There is too much demand for aid in fragile states for it to be diverted to the needs of the Ministry of Defence, however hard it argues the case that fragile states need military intervention. It is too dangerous to contemplate, both for the people in the country affected and for aid workers operating there. I have every sympathy for Ministers who are seeing their precious defence budget cut, but the remedies are staring them in the face. Perhaps I may make a few suggestions. First, we must stop thinking that the United Kingdom should intervene in every conflict and civil war around the globe. Secondly, we must stop just fighting terrorism and start addressing the causes of terrorism—noble Lords would expect me to mention the plight of the Palestinians. Thirdly, please can we abandon the ridiculous notion that Trident needs to be replaced? Some £20 billion to £25 billion could be saved in a stroke on Trident alone. That would pay for a few helicopter gunships.
The Lord Bishop of Derby
My Lords, I, too, would like to add my thanks to the noble Lord, Lord Empey, for introducing this debate, and I hope that noble Lords will see that not only do the right reverend Prelate the Bishop of Chester and I sit on the same Bench, we have a similar view on this issue. I thank my friend and colleague the noble Lord, Lord Judd, for his wisdom. I hope that I can simply embroider his words because he has said all that needs to be said. Not least is the point that this is not simply about a crude choice, it is about priorities and the particularity of aid alongside the necessity of the military.
I need to declare some interests. I am a trustee of Christian Aid, but tomorrow night I shall be having dinner with the adjutant of the Royal Hospital Chelsea, so I have some military friends and connections as well. I want to take a steer in my brief remarks from the Book of Common Prayer. The morning prayer, the second collect, is as follows:
“O God, who art the author of peace and lover of concord”.
I shall explore the difference between peace and concord. Peace is a spiritual state. It wells up in our hearts, developing harmony and good will towards others. It is what drives aid, it is what unites us across this House, and it is what unites the British people in the Government’s policy to protect 0.7% of our income for aid. There is a desire for peace through harmony, generosity and connection.
When we come to the concord bit, we have to put in place arrangements to deliver it, and it is concord that we cannot agree on. That is where we need political arrangements and sometimes military interventions to try to ensure that there is some concord. These things do not fit together easily and must be properly distinguished. I want to look at each of these emphases and put some questions to the Minister.
If we think about ordering, about the concord that we have to try to create and support across the world, my military friends would remind me that the military has always been involved in creating concord through delivering what we call aid or humanitarian support. I can give examples of this from Alexander the Great to the Napoleonic Wars. More recently, there is a priest in the diocese I serve who was in the Royal Air Force. He tells moving stories about his time as a serviceperson of being involved in humanitarian work such as the rebuilding of schools and getting supplies through lines in order to feed people who were trapped behind them. There is a long and important tradition of the military playing a constructive role in the delivery of what we would call aid. In that sense, we need to look at that military capability, which is often important in a natural disaster. Aid agencies tend to need to plan and budget carefully, but the military has the resource and dynamism to get in there and connect. If the military is going to be part of the aid scenario, we have to look at how that co-ordinates with what we understand about aid, aid agencies and DfID. Is there a case for joint training and planning, especially in relation to natural disasters, and should a co-ordinated effort be made? It is a question that can be asked and it needs to be pursued.
Let us think about the peace that aid agencies, DfID and others stand for alongside the military trying to develop and preserve concord, particularly through aid exercises. Let us think about aid more narrowly—the peace that comes from the heart through trying to connect human beings by helping women and girls, reducing infant mortality or whatever it might be. As the noble Lord, Lord Judd, said, there are tensions because, to deliver aid, people try to offer a kind of neutrality about the political context of finding order and concord. Whether there is peace or disorder, aid needs to be delivered.
Aid agencies and those in partnership with DfID try to work in partnership with the local, and often the local can see aid workers, if they are associated with the military, as foreigners and the enemy. Therefore, the aid operation on the ground, working through partnership, is put in serious danger by being associated with a foreign power.
Of course, as we have heard, the whole aid thrust of DfID and the aid agencies is about poverty reduction. It is not just about good ordering and trying to create the stability that people need. It is about positive things, such as tax justice, land distribution and trade arrangements. There is a much bigger agenda than the military can ever be involved in. So there is a place for military co-operation with the delivery of aid in some contexts. However, that must not compromise the ability of DfID and aid agencies to deliver aid in complex situations where it might be a handicap to be associated too closely with military operations that are associated with interference from a foreign power.
I conclude by asking the Minister to address a number of questions. First, will poverty eradication remain the key purpose of UK aid? Secondly, will the 0.7% commitment be targeted to aid and development and ring-fenced from foreign policy costs? Could there be some kind of quadruple lock to preserve that? Thirdly, what plans are there for the MoD and DfID to work more closely together? Fourthly, does the Minister recognise our concern for aid work if we blur the boundaries between military activity and the provision of aid? That puts the whole credibility of aid and those who deliver it in serious jeopardy.
Lord Rosser
My Lords, this has been an interesting, albeit brief, debate. Like virtually every other speaker, I, too, congratulate the noble Lord, Lord Empey, on his opening speech and on giving us the opportunity to receive, we hope, some clarification from the Government about their intentions on this issue.
The Government have previously said on more than one occasion that they are committed not only to achieving but to legislating for 0.7% of gross national income, in line with the United Nations target, to be spent on international aid and development. There was, of course, no mention of such legislation in the gracious Speech, and no indication has been given about when such legislation might appear or, indeed, why it has not appeared to date, as promised. On top of that, we are hearing suggestions from the centre of government that some United Kingdom aid might be directed to prop up a defence budget facing further cuts and also to promote trade interests and British business. As has been said, the Prime Minister announced just under four months ago that he was “very open” to spending money from the UK aid budget on peacekeeping and other security operations, and that he would like to see more of the aid budget diverted to defence by building up the Conflict Pool that is already used by the Ministry of Defence and the Department for International Development.
Clearly, today’s debate is an opportunity for the Government to put concerns at rest by explaining why the intended legislation has not appeared, and to give the assurances that the noble Lord, Lord Empey, is seeking that there are no government plans to transfer a portion of the international development budget to the budget of the Ministry of Defence. As the former International Development Secretary, Andrew Mitchell, said, legislating on this issue of the aid budget “takes it beyond doubt” and,
“takes it out of politics”,
in a situation where all three major parties made it clear at the time of the last general election that they would legislate.
We accept, as we have consistently said, that it is essential that international development and defence are better co-ordinated and that, indeed, there should be a co-ordinated approach to tackling conflict that brings together defence, diplomacy and development. We support how the Conflict Pool can be improved and targeted and how a cross-government approach can better prevent and tackle instability. However, any suggestion that aid money can be used to offset deep defence cuts is misleading, since UK aid money can legitimately be used, in accordance with internationally agreed guidelines, only for security, demobilisation and peacekeeping, and not for core military activities. The major proportion of UK aid money must continue to be used to alleviate poverty, improve basic services and support job creation, all of which are central to ending conflicts everywhere. In that regard, can the Minister say whether any DfID review, or a review by any other competent body or organisation, is being considered or undertaken in relation to the definition used for overseas development assistance, or of the interpretation of that definition, and if there is, the purpose of such a review?
International development aid works, since it saves lives, helps reduce inequality and gives people the chance of a better future. It is also in Britain’s interests, since the unrealised potential of developing nations and their peoples represents lost trade and growth for the UK, as well as for those developing nations and the global economy. It is now time for the Government, when they come to respond, to say why the Prime Minister made the statements he did—to which the noble Lord, Lord Empey, referred—if there is no change in policy. In the light of some recent off-the-record briefings and ad hoc policy statements, as well as the continuing absence of promised legislation, it is also for the Government to show that their direction and good intentions on international development aid will not be compromised by either the consequences of their failure to meet financial targets at home or the need to appease those within their ranks who give such aid little or no priority.
Baroness Northover
My Lords, I thank the noble Lord, Lord Empey, for securing this debate and all noble Lords for their contributions. There has been gratifying agreement about the importance of supporting development and support for the UK’s stance in reaching 0.7% of GNI on aid. We are, of course, the first G8 country to do so. I thank noble Lords for that agreement. The noble Lords, Lord Judd and Lord McConnell, the noble Baroness, Lady Tonge, and other noble Lords paid very generous tribute to the Government over that, which we really appreciate.
Especially in a period of austerity, I am very proud of the fact that we have done that and know how important it is morally. Singing, I suppose, in agreement, we have the right reverend Prelates, the Bishop of Chester and the Bishop of Derby, along with other noble Lords. The noble Earl, Lord Listowel, and other noble Lords emphasised that and pointed out what a difference it makes to the poorest around the world. However, it is also in our own national interest that we do this, which has been recognised as well. As my right honourable friend the Prime Minister pointed out on Saturday at the Nutrition for Growth summit:
“We understand that if we invest in countries before they get broken, we might not end up spending so much on dealing with problems—whether that’s immigration or new threats to our national security”.
The noble Lord, Lord Empey, and other noble Lords asked further about the Prime Minister’s position. Earlier this year, in India in February, the Prime Minister said,
“conflict states … haven’t met a Millennium Development Goal between them … it’s obviously true that if you can help deliver security and help provide stability … that is the base from which all development can proceed”.
He made it clear that spending would be compliant with international rules that define aid spending.
The Prime Minister did not say that he was filling some MoD black hole with the aid budget, whatever some decided he might have meant. He was saying that we need to work together to ensure we establish security for people in fragile and conflict-affected states, so that development can be built on. I am sure that the noble Baroness, Lady Tonge, and other noble Lords would agree with that. I note the real sophistication in this House in understanding how security and stability underpin development. As the noble Lord, Lord Judd, said, both the MoD and DfID are about human security and well-being. That was a brilliant encapsulation. They are complementary.
I assure my noble friend Lord Bates that, as he knows, as do other noble Lords, that the rules do not allow blurring. As noble Lords are well aware, and as the noble Lord, Lord Rosser, pointed out, the 0.7% must be spent in line with the definitions of official development assistance—ODA—as set out by the Development Assistance Committee of the Organisation for Economic Co-operation and Development. These directives define ODA as flows to eligible countries and multilateral institutions, each transaction of which is,
“administered with the promotion of the economic development and welfare of developing countries as its main objective”.
The right reverend Prelate the Bishop of Derby should find the multiple locks of the OECD reassuring. As noble Lords are well aware, the OECD directives rule out, for example, financing military equipment or services—including helicopters—unless funding is used to cover the additional costs to the military of delivering humanitarian aid.
I assure the noble Lord, Lord McConnell, and the right reverend Prelate the Bishop of Derby, in terms of aid workers being put in danger, that we are clear that humanitarian assistance should be administered impartially and on the basis of need. The protection and expansion of the humanitarian space protects aid workers from being seen as targets, but we are well aware of the general threats to them worldwide. We pay tribute to their efforts.
There is, of course, a wide understanding in this House that DfID, the FCO and the MoD need to work together, as the previous Government agreed, to ensure that we bring together development, diplomatic and defence expertise on the ground. The Building Stability Overseas strategy was produced jointly by DfID, the FCO and the MoD in July 2011 with a strong integrated approach across government at its heart, developing work done by the previous Government. Improving stability and security in fragile and conflict-affected states is vital for development. Conflict and instability undermine our efforts to reduce poverty. No conflict-affected country has met a single MDG. That is why the Government have committed to spend 30% of UK ODA in fragile and conflict-affected states by 2014-15. The noble Lord, Lord Judd, is right to emphasise that.
The UK-led Helmand provincial reconstruction team in Afghanistan is demonstrating how DfID, the MoD and the FCO can work effectively together. There we use the military’s strengths in delivery, access and know-how and the civilian staff’s political access, sector expertise and longer-term focus. This ensures maximum impact from our combined resources and expertise. Civilian and military teams work jointly to plan and deliver infrastructure projects on the ground, building schools, clinics and roads where needed and in keeping with Afghan government plans and capacity. Support for such development would not be possible without the military, which provides the security needed for governance and development to take hold.
Of course, as noble Lords know, this co-operation cannot be funded in such a way as to go beyond the OECD definitions. Therefore, for such operations, a mix of ODA and non-ODA resources is required. The Conflict Pool, to which noble Lords have referred, provides a funding mechanism made up of both resources. This was put in place by the previous Government. The mix of ODA and non-ODA is to give maximum impact. This enables the Conflict Pool to pay for military-led activities that help create stability in the most conflict-affected environments. The Conflict Pool is separate from and additional to departmental budgets.
My noble friend Lord Bates is right to praise the Conflict Pool as a tried departmental mechanism to increase the effectiveness of our programmes. Its aim is to reduce the number of people around the world whose lives are or might be affected by violent conflict. It is jointly managed by DfID, the MoD and the FCO and operates on the principle that all policy and programming decisions are taken jointly.
In 2012-13, £175 million of ODA was available through the Conflict Pool. The MoD spent about £2 million of this. As noble Lords will appreciate, the MoD spends more non-ODA from the Conflict Pool: about £40 million in 2012-13.
Like my noble friend Lady Tonge, I found myself going back a little in time as I was preparing for this debate. In 2009, for example, I submitted Written Questions to the previous Government about transfers from DfID, and I shall give a selection of the detail in the answers from the noble Lord, Lord Tunnicliffe. Noble Lords will find a trail of questions and answers in the months following March 2009, should they wish to look.
In answer to me on 9 March the noble Lord mentioned that transfers from DfID to other departments included £1,650,000 to DCMS for developing sport to do with the Olympics; £300,000 to the MoD; £1 million to the FCO; £6,716,000 to the FCO; £18,899,000 to the MoD for the conflict prevention pool, and so on. There was another transfer of £917,000 to the MoD for stabilisation in Iraq and £1 million to the FCO for police reform in Pakistan. In summary, the noble Lord replied that overall transfers will not significantly affect the UK’s ODA/GNI ratio.
The word “significantly” is interesting. I noted back in my questions that almost all the transfers were in one direction—away from DfID. I hope the noble Lords, Lord McConnell, Lord Rosser, and others, will note that there is a track record for the transfer of funds to other departments from DfID. For example, after the earthquake in Pakistan in 2005, the military supported relief efforts, providing helicopters, engineers and airlift capability. A memorandum of understanding was developed in 2000 between the MoD and DfID which provides the framework for DfID to request the use of military assets where civilian capabilities are either unavailable or inadequate to meet humanitarian needs in accordance with international guidelines.
My noble friend Lord Chidgey asked about the NSC, which has considered the topic of development in conflict, as one would hope it would. This is to ensure that the Government’s efforts are as effective as possible. The MoD recently published a joint international defence engagement strategy with the FCO, and among the four pillars of that are conflict prevention, post-conflict reconstruction and stabilisation.
Of course we can understand departments looking across at other departments’ budgets, not only DfID’s, I can assure the House. I am sure the previous Government experienced the same thing. I can assure noble Lords that our commitment to cross-departmental work for development is carried out in accordance with OECD rules. Noble Lords have made it clear in the debate that they fully understand the need to ensure that we work across departments, and that is what we must do. Whether it is the MoD, the FCO and DfID, or DfID, DECC and Defra on environmental issues and climate change, or DfID, DoH and DfE on health, development and education, we must ensure that what the UK Government do has the greatest effect in the relief of poverty around the world.
Noble Lords would expect no less of us. We are clear that the Government are committed to spending 0.7% of GNI on aid. Aid is defined as official development assistance by the OECD. We need to work across departments to achieve as much as we possibly can while we work with international organisations, both public and private, as shown in the nutrition summit. We are all agreed on how important it is to deliver the MDGs and their successors so that we can eradicate poverty worldwide. There is a sophisticated understanding in this House that to achieve that requires working across government.